Who Asks the Questions Around Here?

Why It’s Important That Defense Counsel, Rather Than the Trial Court, Question a Defendant During a 'Momon' Hearing

For the past 16 years, a hearing to question a criminal defendant regarding his or her decision not to testify at trial has become a common feature of criminal trials in Tennessee. This procedure was adopted by our supreme court in Momon v. State.[1] In Momon, the Tennessee Supreme Court established “a prophylactic procedure designed to ensure that a defendant’s waiver of the fundamental right to testify is voluntary, knowing and intelligent.”[2] The case arose because Mr. Momon’s defense counsel “neither advised [him] of his right to testify nor discussed with [him] the advantages and disadvantages of testifying or refraining from testifying.”[3] Instead, defense counsel “unilaterally decided not to call [Momon] as a witness” and “merely informed [him] of [that] decision as they were entering the courtroom.”[4]

Our supreme court responded to these facts by expressly holding that “the right of a criminal defendant to testify in his or her own behalf is a fundamental constitutional right” that “may only be waived personally by the defendant.”[5] As such, the court adopted the prophylactic procedure now commonly known as a Momon hearing to “ensure that defense attorneys in future criminal cases do not unilaterally deprive criminal defendants of the fundamental right to testify.”[6] The court held that “[a]t any time before [the] conclusion of the proof, defense counsel shall request” a jury-out hearing placed on the record “to inquire of the defendant whether the defendant has made a knowing, voluntary, and intelligent waiver of the right to testify.”[7]

Defense counsel “is not required to engage in any particular litany” in questioning the defendant.[8] However, defense counsel “must show at a minimum that the defendant knows and understands” the following:

  1. the defendant has the right not to testify, and if the defendant does not testify, then the jury (or the court) may not draw any inferences from the defendant’s failure to testify;
  2. the defendant has the right to testify and that if the defendant wishes to exercise that right, no one can prevent the defendant from testifying; [and]
  3. the defendant has consulted with his or her counsel in making the decision whether or not to testify; that the defendant has been advised of the advantages and disadvantages of testifying; and that the defendant has voluntarily and personally waived the right to testify.[9]

This questioning must be done “in the presence of the trial judge.”[10]

In the 16 years since the Momon opinion was decided, there have been some issues regarding when and how to conduct a Momon hearing. For example, some trial courts out of an abundance of caution have conducted Momon hearings even when the defendant has elected to testify despite the clear language in Momon that the prophylactic procedure was to be applied “in every trial where the defendant does not testify.”[11] Recently, our supreme court explicitly declined “to extend the Momon procedure to those defendants electing to testify,” noting that “the practical result” of such an extension “would be to require a Momon hearing in every criminal trial.”[12]

Another example, and more troubling than the confusion over when to hold a Momon hearing, is the issue of who should question the defendant about his or her decision not to testify. The Momon opinion itself is very clear that defense counsel is the one who should question the defendant about his or her decision. Before enunciating the Momon procedure, the opinion states that trial courts “should allow, and indeed require, defense counsel to employ” the procedure described earlier in this article.[13] As previously mentioned, the Momon opinion also states that it was defense counsel who was required to request the hearing prior to the conclusion of the proof.[14] In describing the types of questions to be asked during the hearing, the Momon opinion makes clear that it is defense counsel’s burden to “show at a minimum that the defendant knows and understands” his right to testify and has knowingly, voluntarily and personally waived that right.[15]

At this point, it should be noted that Tennessee’s requirement of a Momon hearing to determine if a defendant has voluntarily, knowingly and intelligently waived his or her right to testify puts it in the minority of jurisdictions.[16] “Most courts … that have addressed the issue have taken the view that the trial judge has no duty to advise a defendant of the right to testify or to ascertain on the record whether the defendant’s waiver of that right is voluntary, knowing, and intentional.”[17] Jurisdictions making this decision have done so for several reasons, including the desire to avoid having trial courts “influencing the defendant to waive or assert the right to testify,” to avoid having trial courts interfere with the attorney-client relationship or appear to be “participating in trial strategy,” and to avoid causing confusion, delay, or unduly burdening the trial court.[18]

In outlining the Momon procedure, our supreme court noted that defense counsel “is generally in the best position to voir dire the defendant concerning a waiver of the right to testify” and that the procedure was designed to “avoid any possible perceived pitfalls of mandating direct questioning by the trial court itself.”[19] Specifically, the opinion states that the Momon procedure is designed to “minimize judicial interference with the attorney-client relationship” and any possible influence on the defendant’s decision to waive or assert the right to testify.[20] Between those two “perceived pitfalls,” avoiding the latter is of the utmost importance because “the right to testify is the mirror image of the right to remain silent [and] there is an inherent risk that a trial judge participating in the questioning may cast an unflattering light on the right not to testify.”[21]

The fact that the right to testify and the right to remain silent are different sides of the same coin makes the Momon hearing different from a guilty plea colloquy. In a guilty plea colloquy, the trial court’s “intentions are clear” that it is seeking to inform “the defendant of constitutionally provided protections,” but the interplay of rights at issue during a Momon hearing is “more complex.”[22[ To that end, our supreme court explicitly held that “[u]nder normal circumstances … the trial judge should play no role in” the questioning of the defendant during a Momon hearing.[23] Generally, only when “defense counsel fails to adequately obtain a waiver” or the trial judge “believes there is evidence that the defendant is not making a valid waiver of the right to testify” should the trial judge intervene in the Momon hearing.[24] In those circumstances, “the trial judge is obliged to question the defendant directly to the extent necessary to ensure a valid waiver.”[25]

Typically, issues regarding Momon hearings are raised for appellate review when “the defendant did not testify at trial and then claims on appeal that he or she wanted to testify and did not waive the right to do so.”[26] As far as I am aware, the only recent case that comes close to challenging the questioning of a defendant during a Momon hearing is State v. Kenneth Paul Colvett.[27] The challenge in Colvett, however, was more to the Momon procedure in general rather than a specific challenge to the trial court’s questioning of Colvett.[28] Furthermore, the panel of the Court of Criminal Appeals reviewing Colvett’s conviction held that he had waived the Momon issue by failing to contemporaneously object and noted that “defense counsel [had] repeatedly stated his concerns that [Colvett] could not participate in his defense and made no request for a Momon hearing” prior to the trial court’s questioning of Colvett.[29]

While the issue of who questions the defendant during a Momon hearing has not received much attention since Momon was decided by the Tennessee Supreme Court in 1999, I have noticed a trend of trial courts bypassing defense counsel to question defendants themselves during Momon hearings.[30] In addition to the cited cases, I have anecdotally noticed in my reading of trial transcripts for my job as a law clerk that trial courts, rather than defense counsel, are questioning defendants during Momon hearings with increasing frequency. This could be for any number of reasons: the fact that Momon was decided 16 years ago, the fact that the procedure outlined in Momon so closely resembles a guilty plea colloquy, or the perceived burden of having defense counsel voir dire the defendant in the middle of a trial. The fact that this issue is not being challenged in the trial courts or raised on the appellate level belies its importance.

In Momon, our supreme court elected to add an extra layer of protection for the constitutional right to testify, which the majority of other jurisdictions have rejected.[31] In doing so, it sought to avoid the “possible perceived pitfalls of mandating direct questioning by the trial court” that other jurisdictions had cited in rejecting prophylactic procedures like the one outlined in Momon.[32]

As such, it is vitally important that defense counsel, rather than the trial court, question a defendant during a Momon hearing in most circumstances.[33] To do otherwise disturbs the delicate balance our supreme court sought between “ensuring that defendants know and understand that they have a fundamental right to testify in their own behalf” and avoiding “judicial interference with the attorney-client relationship” as well as the risk of the trial court influencing a defendant’s decision by unintentionally casting “an unflattering light” on the right to remain silent.[34]

Notes

  1. 18 S.W.3d 152 (Tenn. 1999).
  2. Mobley v. State, 367 S.W.3d 70, 90 (Tenn. 2013).
  3. Momon, 18 S.W.3d at 163.
  4. Id.
  5. Id. at 161.
  6. Id.
  7. Id. at 162 (emphasis added).
  8. Id.
  9. Id.
  10. Id.
  11. Id. (emphasis added); see State v. Nolan Excell Pippen, No. M2015-00828-CCA-R3-CD, 2016 WL 368313, at *3 n.4 (Tenn. Crim. App. Jan. 28, 2016) (noting that the trial court conducted a Momon hearing prior to the defendant’s testimony when such a hearing was not required); Andrew Mann v. State, No. E2014-01524-CCA-R3-PC, 2015 WL 3643473, at *2 n.2 (Tenn. Crim. App. June 12, 2015) (noting the same), perm. app. denied (Tenn. Aug. 14, 2015); Brandon Mobley v. State, No. E2014-00481-CCA-R3-PC, 2015 WL 2438878, at *8 n.3 (Tenn. Crim. App. May 21, 2015) (noting the same), perm. app. denied (Oct. 15, 2015).
  12. Mobley, 397 S.W.3d at 91.
  13. Momon, 18 S.W.3d at 162 (emphasis added).
  14. Id.
  15. Id.
  16. See Michele C. Kaminski, “Annotation, Requirement That Court Advise Accused of, and Make Inquiry with Respect to, Waiver of Right to Testify,” 72 A.L.R. 5th 403 (1999).
  17. Id.
  18. Id.
  19. Momon, 18 S.W.3d at 162.
  20. Id.
  21. Id. (citing Commonwealth v. Hennessey, 502 N.E.2d 943, 947 (Mass. App. Ct. 1987)).
  22. Hennessey, 502 N.E.2d at 947.
  23. Id. (emphasis added).
  24. State v. Rimmer, 250 S.W.3d 12, 28 n.4 (Tenn. 2008) (also noting that “failure to comply with the ruling in Momon will not serve as a ground for relief if the record otherwise establishes a personal waiver of the right to testify”); Momon, 18 S.W.3d at 162; cf. State v. Henry Zillon Felts, No. M2005-01215-CCA-R3-CD, 2006 WL 2563374, at *7-8 (Tenn. Crim. App. Aug. 25, 2006) (holding that the trial court’s question, “Is that your final and are you comfortable with that decision” at the conclusion of defense counsel’s colloquy with the defendant did not “cast an unflattering light on the defendant’s right not to testify”).
  25. Momon, 18 S.W.3d at 162.
  26. Kaminski, “Annotation, Requirement That Court Advise Accused of, and Make Inquiry with Respect to, Waiver of Right to Testify,” 72 A.L.R. 5th 403 (1999); see also Robert Charles Taylor v. State, No. E2012-01625-CCA-R3-PC, 2013 WL 6797398, at *15-16 (Tenn. Crim. App. Dec, 20, 2013) (holding that trial counsel was ineffective for failing “to ensure that a Momon hearing was conducted” but that the petitioner was not prejudiced by the failure); Billy J. Coffelt v. State, No. M2009-00474-CCA-R3-PC, 2010 WL 4396496, at *7-9 (Tenn. Crim. App. Nov. 5, 2010) (holding the same), perm. app. denied (Tenn. Apr. 13, 2011); State v. Christopher Brian Knight, No. E2007-01456-CCA-R3-CD, 2009 WL 311566, at *10-11 (Tenn. Crim. App. Feb. 9, 2009) (holding that failure to conduct a Momon hearing was harmless error when there was other evidence in the record to suggest that the defendant waived his right to testify).
  27. No. M2013-02488-CCA-R3-CD, 2014 WL 7223775, at *26 (Tenn. Crim. App. Dec. 19, 2014), perm. app. denied (Tenn. Apr. 10, 2015).
  28. Id.
  29. Id.
  30. While not raised as an issue on appeal, see State v. John Russell Giles Jr., No. E2014-02212-CCA-R3-CD, 2016 WL 921090, at *9 (Tenn. Crim. App. Mar. 10, 2016); Pippen, 2016 WL 368313 at *3; Grico Clark v. State, No. W2015-00894-CCA-R3-PC, 2016 WL 259521, at *3 (Tenn. Crim. App. Jan. 20, 2016); Mann, 2015 WL 3643473 at *2; Gary Wayne Bush v. State, No. M2014-00759-CCA-R3-PC, 2015 WL 1396527, at *4, *7 (Tenn. Crim. App. Mar. 25, 2015), perm. app. denied (Tenn. June 11, 2015); Steve Carl King v. State, No. M2013-01722-CCA-R3-PC, 2014 WL 6433605, at 15 n.1 (Tenn. Crim. App. Nov. 18, 2014), perm. app. denied (Tenn. Mar. 12, 2015) (Designated “Not for Citation”); and Alfred William Smith v. State, No. E2007-02457-CCA-R3-PC, 2009 WL 112569, at *9 (Tenn. Crim. App. Jan. 15, 2009), perm. app. denied (Tenn. June 15, 2009), for recent examples.
  31. Momon, 18 S.W.3d at 161-63.
  32. Id. at 162.
  33. Id.
  34. Id.

Jason R. Smith JASON R. SMITH is a law clerk to Judge D. Kelly Thomas Jr., of the Tennessee Court of Criminal Appeals. He is a 2009 graduate of the University of Tennessee College of Law. Prior to clerking for Judge Thomas, he was a research attorney at Butler, Vines & Babb PLLC in Knoxville.

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