Thomas v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE

MARLON THOMAS, §
§ No. 397, 2021
Defendant Below, §
Appellant, §
§ Court Below–Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE, §
§ Cr. ID Nos. 2101011732(S)
Appellee. § 2008012702(S)

Submitted: December 7, 2022
Decided: February 17, 2023

Before SEITZ, Chief Justice; VALIHURA and VAUGHN, Justices.

Upon Appeal from the Superior Court. AFFIRMED.

Santino Ceccotti, Esquire, Office of the Public Defender, Wilmington, Delaware, for
Defendant Below, Appellant Marlon Thomas.

Kathryn J. Garrison, Esquire, Delaware Department of Justice, Wilmington,
Delaware, for Plaintiff Below, Appellee State of Delaware.
SEITZ, Chief Justice:

After a two-day bench trial in 2021, a Superior Court judge convicted Marlon

Thomas of second degree rape, third degree unlawful sexual contact, and other

charges. The judge sentenced Thomas to fifty-five years in prison, suspended after

twenty-five years for decreasing levels of supervision. Thomas did not testify in his

defense.

Thomas raises one issue on appeal—whether the Superior Court erred by

failing to raise with Thomas his right to testify and failing to ensure that his waiver

of the right to testify was voluntary, knowing and intelligent. According to Thomas,

the right to testify is a fundamental constitutional right under the U.S. and Delaware

Constitutions, and before waiving that right, the Superior Court must have a colloquy

with the defendant.

We affirm Thomas’s convictions for three reasons: first, Thomas waived his

state constitutional claim by failing to support it on appeal; second, there is no federal

constitutional requirement that the trial judge have a colloquy with the defendant

before waiving his right to testify; and third, given that the fact finder was the judge

and not a jury, the trial judge handled the right to testify issue with appropriate

sensitivity to avoid prejudicing Thomas’s decision whether to testify.

2
 I.

On August 26, 2020, Georgetown Delaware Police arrested Marlon Thomas

after G.T. reported to police that Thomas raped her. A Sussex County grand jury

indicted Thomas for one count each of second degree rape, third degree unlawful

sexual contact, tampering with physical evidence, conspiracy in the second degree,

two counts each of tampering with a witness, and non-compliance with condition of

bond. During a two-day bench trial, defense counsel noted in his opening statement

that Thomas “may testify. He may not. I don’t know.”1

After the State rested its case-in-chief, the Superior Court recessed for lunch

and to allow defense counsel time to “think about and talk about as to what you want

to do from here on in.”2 When the court reconvened, the defense rested without

calling witnesses. Thomas did not ask to testify, and his counsel did not raise the

issue with the court. There was no colloquy with Thomas about his right to testify

or his waiver of the right. The trial judge found Thomas guilty of all charges.

II.

The single issue on appeal is whether the Superior Court erred when it did not

raise directly with Thomas his right to testify and ensure that his waiver was

voluntary, knowing and intelligent. Thomas argues that the right to testify in one’s

1
App. to Opening Br. at A25.
2
Id. at A266.

3
defense is a constitutional right personal to the defendant. According to Thomas,

before waiving that right, the trial judge must have a colloquy with a defendant.

Otherwise, he argues, the court violates his constitutional rights to due process and

a fair trial under the Fifth, Sixth, and Fourteenth Amendments to the U.S.

Constitution and Article I, Sections Four and Seven of the Delaware Constitution.

The State counters that Thomas waived his claims under the Delaware

Constitution because he did not raise them below and has made only conclusory

arguments on appeal in support of those claims. And, according to the State, most

federal and state courts of appeal have not found a federal constitutional requirement

to raise with the defendant the right to testify in his defense or to make sure that a

waiver of the right to testify is voluntary, knowing and intelligent.

A.

Our first task on appeal is to decide what standard of review applies to

Thomas’s constitutional claims. Ordinarily, we review claims for constitutional

error de novo.3 But Thomas did not offer any argument on appeal to support his

state constitutional claims. Summary arguments unsupported by legal argument,

analysis, and authority are waived.4 Thus, we will not consider Thomas’s state

constitutional claims.

3
Cooke v. State, 977 A.2d 803, 841 (Del. 2009).
4
Ortiz v. State, 869 A.2d 285, 290-91 (Del. 2005), overruled on other grounds by Rauf v. State,
145 A.3d 430 (Del. 2016).

4
 Regarding his claims under the U.S. Constitution, if they were not raised

below, we would ordinarily review for plain error.5 A deprivation of fundamental

constitutional rights, however, like the right to testify in a criminal case in one’s

defense, can be considered structural errors that are reviewed de novo on appeal.6

The parties agree that the Court should apply a de novo standard of review.7

Whether Thomas’s argument is reviewed de novo as structural error or for plain

error, the outcome is the same—the Superior Court did not violate Thomas’s rights

under the U.S. Constitution.

B.

In 1987, the U.S. Supreme Court held in Rock v. Arkansas that criminal

defendants have a fundamental right under the U.S. Constitution to testify on their

own behalf.8 According to the Court, “[e]very criminal defendant is privileged to

testify in his own defense, or to refuse to do so.”9 Although not stated explicitly in

the U.S. Constitution or its Amendments, the right to testify is a “necessary

ingredient[] of the Fourteenth Amendment’s guarantee that no one shall be deprived

of liberty without due process of law.”10 It is also grounded in the Compulsory

Process Clause of the Sixth Amendment, which gives an accused the right to call

5
Supr. Ct. R. 8; Williams v. State, 796 A.2d 1281, 1284 (Del. 2002).
6
Cooke v. State, 977 A.2d 803, 841 (Del. 2009).
7
Opening Br. at 5; Answering Br. at 5.
8
483 U.S. 44 (1987).
9
Id. at 53.
10
Id. at 51.

5
witnesses whose testimony is material and favorable to his defense. And it is “a

necessary corollary to the Fifth Amendment’s guarantee against compelled

testimony.”11 The right to testify is a fundamental constitutional right that is

personal to the defendant.12

Our Court is of the same mind.13 As we have explained, a defendant’s

decision whether to testify goes to the “fundamental fairness of the trial.”14 And

under the Delaware Rules of Professional Conduct, defense counsel must honor a

defendant’s personal decision whether to testify.15

The question before us is not, however, whether there is a constitutional right

to testify in one’s defense in a criminal trial. Clearly there is. Also not before us is

a self-represented defendant laboring under a misunderstanding of his right to

testify,16 a defendant who demands to testify and is prevented from testifying,17 or a

11
Id. at 52.
12
Id. at 53 n. 10 (“On numerous occasions the Court has proceeded on the premise that the right
to testify on one’s own behalf in defense to a criminal charge is a fundamental constitutional
right.”). See also Riggins v. Nevada, 504 U.S. 127, 144 (1992); In re Oliver, 333 U.S. 257, 273
(1948); McCoy v. Louisiana, 138 S. Ct. 1500, 1508 (2018); Jones v. Barnes, 463 U.S. 745, 751
(1983).
13
Cooke, 977 A.2d at 841-843; Erskine v. State, 2013 WL 1919121 (Del. 2013).
14
Cooke, 977 A.2d at 841 (quoting Arko v. People, 183 P.3d 555, 558 (Colo. 2008)).
15
Del. Lawyers’ R. Prof’l Conduct 1.2(a).
16
United States v. Ly, 646 F.3d 1307 (11th Cir. 2011) (holding that when the court is alerted that
a pro se defendant is waiving their right to testify based on a misunderstanding of the law, the
court has a duty to conduct a colloquy and correct the pro se defendant’s misunderstanding of their
right to testify).
17
Hartsfield v. Dorethy, 949 F.3d 307, 315 (7th Cir. 2020) (recommending that trial counsel or
the judge put a defendant’s waiver of their right to testify on the record outside the presence of the
jury to eliminate questions surrounding waiver, such as when defense counsel is claimed to have
“shushed” a defendant who tries to assert their right to testify before the judge).

6
defendant who has a conflict with his counsel about whether to testify.18 What is

under consideration is whether, as a federal constitutional matter, the right to testify

requires the trial court to conduct a colloquy with the defendant to make sure that he

understands his right to testify, and if he decides not to testify, has voluntarily,

knowingly and intelligently waived the right.

We are persuaded by the greater weight of authority that, as a federal

constitutional matter, a colloquy is not required.19 First, the right to testify is

different from other constitutional rights waived only after a colloquy with the court

into the validity of the waiver. As the Third Circuit has observed, the right to testify

is anchored in the Fifth Amendment, which also provides for a guarantee against

compelled testimony in criminal cases.20 Thus, “[e]xercise of either the right to

testify or the right not to testify necessarily would waive the other right.”21 If the

trial court, however well-intentioned, inserts itself into the decision, it “could

18
United States v. Pennycooke, 65 F.3d 9, 11 (3d Cir.1995) (when defense counsel “nullifies a
defendant's right to testify over the defendant's protest, the defendant clearly has been denied the
right to testify. In such a case, it may be advisable that the trial court inquire discreetly into the
disagreement and ensure that constitutional rights are not suppressed wrongly.”).
19
United States v. Ortiz, 82 F.3d 1066 (D.C. Cir. 1996); Siciliano v. Vose, 834 F.2d 29 (1st Cir.
1987); Brown v. Artuz, 124 F.3d 73 (2d Cir. 1997); United States v. Pennycooke, 65 F.3d 9 (3d
Cir. 1995); United States v. Muslim, 944 F.3d 154 (4th Cir. 2019); Hodge v. Haeberlin, 579 F.3d
627 (6th Cir. 2009); Liegakos v. Cooke, 106 F.3d 1381 (7th Cir. 1997); U.S. v. Ehrmann, 421 F.3d
774 (8th Cir. 2005); United States v. Martinez, 883 F.2d 750 (9th Cir. 1989), vacated on other
grounds, 928 F.2d 1470 (9th Cir. 1991); United States v. Janoe, 720 F.2d 1156 (10th Cir. 1983);
United States v. Teague, 953 F.2d 1525 (11th Cir. 1992).
20
United States v. Pennycooke, 65 F.3d 9, 11 (3d Cir. 1995), citing Rock v. Arkansas, 483 U.S. at
52.
21
Pennycooke, 65 F.3d at 11.

7
inappropriately influence the defendant to waive his [or her] constitutional right not

to testify, thus threatening the exercise of this other, converse, constitutionally

explicit, and more fragile right.”22

Second, we find the reasoning of the United States Court of Appeals for the

Seventh Circuit in United States v. Stark instructive.23 In Stark, the defendant

claimed in a motion for a new trial after conviction that he wanted to testify at trial

but believed he could not after signing a proffer letter during plea negotiations. The

district court did not find the defendant’s testimony credible after considering the

testimony of his trial counsel that Stark agreed he should not testify. The court

denied Stark’s motion.

On appeal, the Seventh Circuit affirmed. The court found that although “[a]

defendant’s right to testify is fundamental, . . . there is no ironclad rule that a district

court judge must always explore the question whether the defendant knowingly and

voluntarily waived that right every time a defendant does not testify.”24 According

to the court, the trial court may inquire into a defendant’s decision not to take the

stand, but is not required “to question a defendant sua sponte in order to ensure that

his decision not to testify was undertaken knowingly and intelligently unless there

22
Id., quoting Siciliano v. Vose, 834 F.2d 29, 30 (1st Cir.1987).
23
507 F.3d 512 (7th Cir. 2007).
24
Id. at 514.

8
is some indication that the defendant has been prevented from exercising that

right.”25

The court reasoned that inquiring into the decision to testify requires courts to

“insert themselves into a sensitive aspect of trial strategy, thereby intruding

inappropriately on the attorney-client relationship.”26 Although a judge might

question the defendant when a conflict is apparent between the defendant and his

lawyer about the decision to testify, the district court “retains discretion either to

engage in this kind of colloquy or not.”27

Professor LaFave and his criminal law treatise co-authors have summed up

the relevant points:

Most jurisdictions do not require an on-the-record waiver, and
assume the defendant has waived his right to testify unless he demands
this right. This position rests on several concerns: that, by advising the
defendant of his right to testify, the court could influence the defendant
to waive his right not to testify, “thus threatening the exercise of this
other, converse, constitutionally explicit and more fragile right”; that a
court so advising a defendant might improperly intrude on the attorney-
client relation, protected by the Sixth Amendment, and defense
strategy; and that a judge may not learn the defendant is not testifying
until the defense rests, “not an opportune moment to conduct a
colloquy.” There is also the risk that a judge’s explanation of the
potential consequences of testifying may misinform the defendant or be
perceived as a threat.28

25
Id. at 516.
26
Id.
27
Id.
28
Wayne R. LaFave, Jerold H. Israel, Nancy J. King, and Orin S. Kerr, Criminal Procedure, 6
Crim. Proc. § 24.5(d) (4th ed.) (footnotes and citations omitted).

9
 Specific to this appeal, we have heightened concerns about the trial judge

inserting himself into Thomas’s decision whether to testify. This was a bench trial.

A defendant might be confused why the judge—the factfinder—is raising the right

to testify and whether waiving it is in the defendant’s best interest. One reasonable

reaction to the judge’s questioning might be that deciding not to testify creates a

heightened risk of conviction. The trial judge in this case treaded lightly and

appropriately, telling defense counsel to “think about and talk about as to what you

want to do from here on in.”29

There is no federal constitutional requirement for a colloquy before a

defendant waives the right to testify. Thus, the Superior Court did not err under

either a plain error or de novo standard of review when it did not, on its own, raise

with Thomas the right to testify in his defense and ensure that his waiver was

voluntary, knowing and intelligent.

III.

We affirm the Superior Court’s judgment.

29
App. to Opening Br. at A266.

10