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STATE v. KHAT

The Court of Appeals of Washington, Division One
Nov 15, 2004
124 Wn. App. 1014 (Wash. Ct. App. 2004)

Opinion

No. 53356-8-I

Filed: November 15, 2004 UNPUBLISHED OPINION

Appeal from Superior Court of King County. Docket No: 01-1-10280-6. Judgment or order under review. Date filed: 10/31/2003. Judge signing: Hon. Gain Brian D.

Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.

Corey Marika Endo, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.

Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.

Lee Davis Yates, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.


An attorney's performance is deficient if he prevents a client from exercising his or her constitutional right to testify. After conducting an evidentiary hearing, the superior court found that Chen Khat was informed of his right to testify on the record, that his counsel, John Hicks, reviewed that right with him, and Hicks represented to the court at trial that Khat had waived that right. Because these findings were based on substantial evidence obtained from Hicks' testimony, the trial court did not err in finding that Khat failed to prove by a preponderance of the evidence that Hicks prevented him from testifying.

FACTS

Chen Khat was convicted at a jury trial of rape of a child in the first degree. After the trial and before sentencing, Khat filed a motion for a new trial claiming that his trial counsel, John Hicks, prevented him from testifying. The superior court held an evidentiary hearing where Khat and Hicks offered competing testimony.

Khat testified that he was unaware of his right to testify and that when he had told Hicks that he wanted to testify, Hicks told him he did not need him to testify and that Khat should not say anything and let him do his job. Hicks testified that Khat never demanded to testify and that he had explained Khat's rights to him. Hicks also testified he told Khat that if he testified he would risk having other sex abuse allegations introduced in rebuttal. Hicks explained, `I just saw a nest of vipers that could come up and bite us and Mr. Khat agreed.' There was no other evidence offered other than these competing versions of events.

The superior court ultimately agreed with Hicks and found that Khat failed to show by a preponderance of the evidence that Hicks was ineffective. Khat appeals.

ANALYSIS

A criminal defendant has a constitutional right to testify on his or her own behalf. This right is explicitly protected under the Washington Constitution and cannot be abrogated by defense counsel or by the court. `Only the defendant has the authority to decide whether or not to testify.' `The waiver of the right to testify must be made knowingly, voluntarily, and intelligently, but the trial court need not obtain an on the record waiver by the defendant'.

State v. Robinson, 138 Wn.2d 753, 758, 982 P.2d 590 (1999) (citing Rock v. Arkansas, 483 U.S. 44, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987)).

Robinson, 138 Wn.2d at 758 (citing State v. Thomas, 128 Wn.2d 553, 558, 910 P.2d 475 (1996)).

Robinson, 138 Wn.2d at 758 (citing Thomas, 128 Wn.2d at 558).

Robinson, 138 Wn.2d at 758-59 (citing Thomas, 128 Wn.2d at 558.

`[I]n order to prove that an attorney actually prevented a defendant from testifying, the defendant must prove that the attorney refused to allow him to testify in the face of the defendant's unequivocal demands that he be allowed to do so.' `If a defendant is able to prove by a preponderance of the evidence that his attorney actually prevented him from testifying, he will have established that the waiver of his constitutional right to testify was not knowing and voluntary.'

Robinson, 138 Wn.2d at 764.

Robinson, 138 Wn.2d at 764-65.

Washington law requires allegations such as Khat's be evaluated as a claim of ineffective assistance of counsel under Strickland v. Washington. Under Strickland, the defendant must prove both that the attorney's performance was deficient and that the defendant was prejudiced by the attorney's deficient performance. If a defendant is able to prove by a preponderance of the evidence that his attorney actually prevented him from testifying, the defendant has satisfied the first prong of the Strickland test.

Robinson, 138 Wn.2d at 765-66.

Robinson, 138 Wn.2d at 766.

We review the superior court's factual findings relating to an ineffective assistance of counsel claim under the substantial evidence standard. We review its legal conclusions de novo. Here the superior court held an evidentiary hearing where Khat was afforded the opportunity to prove his attorney prevented him from testifying. Khat offered only his own testimony in support of his claim. Khat's testimony was contradicted by Hicks. Faced with two competing versions of events, the court concluded that Khat was informed of his right to testify on the record, that Hicks reviewed that right with him, and Hicks represented to the court at trial that Khat had waived that right. The court then reached the legal conclusion that Khat failed to prove his claim by a preponderance of the evidence.

State v. Holm, 91 Wn. App. 429, 435, 957 P.2d 1278 (1998).

The court's factual conclusions are supported by Hicks' testimony and thus are supported by substantial evidence. Based on these factual determinations the court properly concluded that Khat failed to prove his case by a preponderance of the evidence.

Khat relies heavily on Hicks' statement to the jury that it was `my decision' Khat should not testify. However, Hicks also stated in his closing argument that `my client did not want to testify' and explained at the evidentiary hearing that he recommended to Khat he not testify and Khat agreed.

The court's statement in its written conclusions of law that Hicks made a strategic decision that Khat should not testify does not show that the court failed to undertake the proper inquiry when it denied Khat's motion. The court indicated in its oral and written findings that Khat was informed of his right to testify on the record, that Hicks reviewed that right with Khat, and Hicks represented to the court that Khat had waived that right. Thus, the court engaged in the proper inquiry when it determined that Hicks' performance was not deficient.

Khat now asks this court for another hearing to determine whether Khat knowingly and voluntarily waived his right to testify. Khat already has had his hearing. The superior court properly concluded that Khat did not prove by a preponderance of the evidence that his attorney prevented him from testifying and thus failed to prove that he did not knowingly and voluntarily waive his right to testify.

Robinson, 138 Wn.2d at 764-65 (`If a defendant is able to prove by a preponderance of the evidence that his attorney actually prevented him from testifying, he will have established that the waiver of his constitutional right to testify was not knowing and voluntary.')

The superior court's decision is affirmed.

KENNEDY, J. and BAKER, J., Concur.


Summaries of

STATE v. KHAT

The Court of Appeals of Washington, Division One
Nov 15, 2004
124 Wn. App. 1014 (Wash. Ct. App. 2004)
Case details for

STATE v. KHAT

Case Details

Full title:STATE OF WASHINGTON, Respondent, v. CHEN KHAT, Appellant

Court:The Court of Appeals of Washington, Division One

Date published: Nov 15, 2004

Citations

124 Wn. App. 1014 (Wash. Ct. App. 2004)
124 Wash. App. 1014