concurring.
I concur in the judgment of the court today and in its opinion, but write separately simply to underscore several of my concerns. Foster’s counsel briefed twenty-five arguments, including the one that is the basis for the court’s decision today. With respect to this issue, the State did not brief the merits, but included it with some ten others in a general argument that they were procedurally barred, and there was no showing of cause and prejudice. The basis for the argument was that Foster had failed to present them in his Rule 27.26 motion. The court today correctly rejects this argument. The claim was presented in the Rule 27.26 motion, and there was considerable testimony on this issue from Foster and his.lawyers, Dunne and Aylward, at the Rule 27.26 hearing. It is true that the issue was not decided by the trial court, but the decision of the Missouri Court of Appeals squarely deals with and rejects the issue. State v. Foster, 748 S.W.2d 903, 907-08 (Mo.Ct.App.1988). Thus, the State’s procedural bar argument must be rejected.
Even though the State did not brief the ineffectiveness argument on the merits, in view of the scatter-shot approach taken by Foster’s counsel in briefing, I would be hesitant to conclude that the State has waived the argument on the merits.
The crucial question is whether there is support for the Missouri Court of Appeals’ finding that “[t]here is no indication that movant was misled by counsel or that he was ignorant of his right to testify.” Id. at 908. If not, the finding is not entitled to the presumption of correctness under 28 U.S.C. § 2254(d)(8). In examining the opinion of the state court of appeals and looking to the record to determine if its decision is supported, it is evident that attorney Aylward, who described himself as in charge of the defense and making the decisions, although delegating the penalty phase to Dunne, was clear in his testimony that a plea for mercy by Foster would have been inconsistent with his defense of alibi during the guilt stage. Thus far there would be evidence to support the state court’s finding in this respect, and further to demonstrate an exercise of defense counsel’s judgment on this issue. Such an exercise of counsel’s judgment would be unassailable in a claim of ineffective assistance of counsel.
From this point on the State’s position deteriorates. Foster had a right to testify at *1460his own trial. Rock v. Arkansas, 483 U.S. 44, 49, 107 S.Ct. 2704, 2708, 97 L.Ed.2d 37 (1987). The law is clear that the decision as to whether or not to testify is Foster’s, and he has the ultimate authority to make this fundamental decision. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983). This is particularly true in a case such as this where a jury has determined guilt, and the only issue remaining is the choice between life imprisonment or death. Foster may have had long odds on receiving the life sentence, but if he desired to testify, perhaps in the hopes that the jury would see him as a human being and that one juror would decide to grant him life, this was his decision to make.
It is true, as the Missouri Court of Appeals held, that movant did not express a desire to testify, or what his testimony would have been. 748 S.W.2d at 908. The next statement by the court, “there is no indication that movant was misled by counsel or that he was ignorant of his right to testify,” is simply not supported by the evidence, and accordingly under 28 U.S.C. § 2254(d)(8) it is not entitled to the presumption of correctness. Both attorneys made clear that they advised Foster not to testify in the guilt phase, but both were uncertain with respect to what they told Foster with respect to the penalty phase. Aylward testified that he did not know in what detail the penalty phase strategy was discussed with Foster, but stated that Foster was aware as to how they were going to proceed. Foster made no request to be allowed to testify. Dunne stated he could not “presume discussing” Foster testifying in the penalty phase of the trial, although it was counsel’s advice that it would be better if Foster did not testify because Foster’s prior convictions might come into evidence. Dunne stated that he did not recall discussing with Foster the possible negative effects of testifying at the penalty phase. Moreover, it did not occur to Dunne that Foster’s testimony at the penalty phase might give the jury more insight into Foster. Dunne could not see how this would have been helpful in leading to some mitigating evidence. Foster was definite that he had not been informed as to whether he could testify at the penalty phase.
Thus, while Foster did not ask to testify, the record is clear that his lawyers were unsure as to whether he had been informed that he had the right to do so. It is evident that Foster was not given sufficient advice to be able make an informed decision about his right to testify.
With this record, there is simply no support for the statement of the Court of Appeals of Missouri that there was no indication that Foster was “misled by counsel or that he was ignorant of his right to testify,” and the presumption of correctness as to this finding falls from the ease.
ORDER
Feb. 22, 1994.
Appellee’s petition for rehearing with suggestion for rehearing en bane has been considered by the court and is granted. The opinion and judgment of this court filed on December 15,1993, are vacated. The case is set for oral argument before the court en banc at 1:00 p.m. on Tuesday, May 24, 1994, in the United States Court and Custom House in St. Louis, Missouri.