Jenkins v. State ( 1997 )

Thompson, Justice,

concurring.

I fully concur with all that is said by the majority, but I write separately to propose a prophylactic rule which would help reviewing courts evaluate post-trial claims, such as raised by Jenkins, that counsel was ineffective in advising a defendant to give up the right to testify at trial. The better practice, and one which has been utilized effectively by some trial judges throughout the state, is for the court to conduct an inquiry on the record, outside the presence of the jury, during which the defendant is advised of the right to testify and the implications inherent in relinquishing that right, and to obtain a knowing and intelligent waiver on the record. Such an inquiry was made by the trial judge in this case. Accordingly, the record reflects that defendant’s right to testify was protected and that defendant himself made the decision not to testify. These factors go a long way toward a proper resolution of defendant’s claim.

I am authorized to state that Justice Sears and Justice Carley join in this concurrence.