dissenting.
The majority recognizes that the right of a defendant to testify in his own behalf in criminal proceedings is a fundamental personal constitutional right. Such a personal right normally may be waived only by a defendant. People v. Chavez, Colo., 621 P.2d 1362 (1981) (Quinn, J., concurring and specially concurring); Winters v. Cook, 489 F.2d 174 (5th Cir. 1973). In the event of any conflict between a defendant's desire to testify and an attorney's advice to the contrary, the defendant must be permitted to exercise his right. See United States v. Poe, 352 F.2d 639 (D.C.Cir.1965); People v. Robles, 2 Cal.3d 205, 85 Cal.Rptr. 166, 466 P.2d 710 (1970), modified and aff'd on other grounds, 8 Cal.3d 908, 106 Cal.Rptr. 387, 506 P.2d 211 (1973). When a trial court is informed that such a conflict has developed, the court has an independent obligation to explain this right to the defendant and to verify that defendant has waived the right. See Himmelfarb v. United States, 175 F.2d 924 (9th Cir. 1949), cert. denied, 338 U.S. 860, 70 S.Ct. 103, 94 L.Ed. 527 (1949).
Here, the trial court initially fully explained defendant's rights to him. The only position personally articulated by defendant which appears in this record is a decision to testify. That decision was made in spite of such strong objections by his attorney that the latter suggested he should be relieved of the responsibility of representing defendant if defendant insisted on testifying.
In my view, having been informed by the defendant that he wished to testify, the trial court was required to ascertain directly from the defendant that he indeed had reconsidered and had decided to waive this right. Such procedure was particularly critical here in view of the ambiguous quality of the statements of defendant's attorney to the court after the noon recess concerning defendant's desires.
Rather than indicating acquiescence, defendant's silence in the absence of any invitation to speak and in light of his attorney's statement that he "will certainly let him be heard" suggests that defendant in fact had not abandoned his previously expressed desire to testify. Silence in this setting provides an especially ephemeral foundation upon which to construct an inference of waiver, and the record contains no solid support for any such conclusion.
In other circumstances a record on appeal may well permit an inference from silence that a defendant acquiesced in his or her attorney's indication that the defendant will not testify. See State v. Albright, 96 Wis.2d 122, 291 N.W.2d 487 (1980). For example, a defense attorney's announcement at the conclusion of the prosecution's case that the defendant rests need not prompt the trial court to obtain a personal waiver by the defendant of his right to testify. However, when a trial court is advised of a conflict between a defendant and his counsel on this issue, the trial court's independent obligation to insure that the defendant has intentionally waived his personal right to testify cannot be discharged by reliance upon the comments of defendant's counsel.
Because I find no basis in the record to permit the conclusion that defendant altered his stated desire to testify, and be*1163cause, contrary to the trial court's initial ruling, defendant was not permitted to testify, I conclude that the judgment must be reversed and the cause remanded for a new trial.