People v. Simmons, 364 N.W.2d 783 (Mich. Ct. App. 1985). · Go Syfert
People v. Simmons, 364 N.W.2d 783 (Mich. Ct. App. 1985). Cases Citing This Book View Copy Cite
323 citation events (261 in the last 25 years) across 21 distinct courts.
Treatment trajectory · 1985 → 2026 · click a year to view as-of
1985 2005 2026
Top citers, strongest first. 26 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) People of Michigan v. Jamie Lynn Coyle
Mich. Ct. App. · 2018 · signal: see · quote attribution · 1 verbatim quote · confidence high
we agree with the majority of courts which have addressed this issue and decline to require an on-the-record waiver of defendant's right to testify. such a requirement would necessarily entail the trial court's advising defendant of his right to testify.
discussed Cited as authority (quoted) People of Michigan v. Gerald Lynn Allen (2×) also: Cited "see, e.g."
Mich. Ct. App. · 2021 · quote attribution · 1 verbatim quote · confidence low
only where counsel's failure to call a witness deprives defendant of a substantial defense is he entitled to relief.
discussed Cited as authority (quoted) People of Michigan v. Scott Richard Jurewicz (2×) also: Cited "see"
Mich. Ct. App. · 2021 · quote attribution · 1 verbatim quote · confidence low
only where counsel's failure to call a witness deprives defendant of a substantial defense is he entitled to relief
discussed Cited as authority (quoted) People of Michigan v. Hilary Cornelius Owens (2×) also: Cited "see"
Mich. Ct. App. · 2018 · quote attribution · 1 verbatim quote · confidence low
if the accused expresses a wish to testify at trial, the trial court must grant the request, even over counsel's objection.
discussed Cited as authority (quoted) People of Michigan v. Robert Joseph Mattson (2×) also: Cited "see, e.g."
Mich. Ct. App. · 2017 · quote attribution · 1 verbatim quote · confidence low
if a defendant . . . decides not to testify or acquiesces in his attorney's decision that he not testify, 'the right will be deemed waived.
discussed Cited as authority (quoted) People of Michigan v. Robert Joseph Mattson (2×) also: Cited "see, e.g."
Mich. Ct. App. · 2017 · quote attribution · 1 verbatim quote · confidence low
if a defendant . . . decides not to testify or acquiesces in his attorney's decision that he not testify, 'the right will be deemed waived.
examined Cited as authority (quoted) People of Michigan v. Lameke Latrice Bailey (3×) also: Cited "see", Cited "see, e.g."
Mich. Ct. App. · 2017 · quote attribution · 1 verbatim quote · confidence low
we agree with the majority of courts which have addressed this issue and decline to require an on-the-record waiver of -10- defendant's right to testify.
examined Cited as authority (quoted) People of Michigan v. Lameke Latrice Bailey (3×) also: Cited "see", Cited "see, e.g."
Mich. Ct. App. · 2017 · quote attribution · 1 verbatim quote · confidence low
we agree with the majority of courts which have addressed this issue and decline to require an on-the-record waiver of -10- defendant's right to testify.
discussed Cited as authority (quoted) People of Michigan v. Jerome L Knight (2×) also: Cited "see"
Mich. Ct. App. · 2015 · quote attribution · 1 verbatim quote · confidence low
if defendant, as in this case, decides not to testify or acquiesces in his attorney's decision that he not testify, the right will be deemed waived.
discussed Cited as authority (rule) Mack 661414 v. Burgess
W.D. Mich. · 2023 · confidence medium
A defendant waives his right to testify if he or she “decides not to testify or acquiesces in his attorney’s decision that he not testify[.]” Simmons, 140 Mich. App. at 685 (citation omitted); see also People v. Harris, 190 Mich. App. 652 , 661–662; 476 N.W.2d 767 (1991).
discussed Cited as authority (rule) People of Michigan v. Nicholas Cole Sinnett
Mich. · 2020 · confidence medium
In Michigan, the trial court is not required to determine whether a defendant waives the right to testify, and if the defendant “decides not to testify . . . the right will be deemed waived.” People v Simmons, 140 Mich App 681, 685 (1985) (quotation marks and citation omitted).
cited Cited as authority (rule) People of Michigan v. Beth Ann Stamat
Mich. Ct. App. · 2019 · confidence medium
If a defendant -8- “decides not to testify . . . the right will be deemed waived.” Simmons, 140 Mich App at 685 (quotation marks and citation omitted).
discussed Cited as authority (rule) People of Michigan v. George Michael Mack
Mich. Ct. App. · 2018 · confidence medium
A defendant waives his right to testify if he or she “decides not to testify or acquiesces in his attorney’s decision that he not testify[.]” Simmons, 140 Mich App at 685 (citation omitted); see also People v Harris, 190 Mich App 652, 661-662 ; 476 NW2d 767 (1991).
discussed Cited as authority (rule) People of Michigan v. George Michael Mack
Mich. Ct. App. · 2018 · confidence medium
A defendant waives his right to testify if he or she “decides not to testify or acquiesces in his attorney’s decision that he not testify[.]” Simmons, 140 Mich App at 685 (citation omitted); see also People v Harris, 190 Mich App 652, 661-662 ; 476 NW2d 767 (1991).
discussed Cited as authority (rule) Manneh Vay v. Commonwealth of Virginia
Va. Ct. App. · 2017 · confidence medium
See, e.g., Brown v. Artuz, 124 F.3d 73, 96 (2d Cir. N.Y. 1997); Underwood v. Clark, 939 F.2d 473, 476 (7th Cir. 1991); United States v. McMeans, 927 F.2d 162, 163 (4th Cir. 1991); United States v. Martinez, 883 F.2d 750, 757 (9th Cir. 1989), vacated on other grounds, 928 F.2d 1470 (9th Cir.), cert. denied, 501 U.S. 1249 , 111 S.Ct. 2886 , 115 L.Ed.2d 1052 (1991); Siciliano v. Vose, 834 F.2d 29, 30 (1st Cir. 1987); State v. Walen, 563 N.W.2d 742, 751-52 (Minn. 1997); State v. Thomas, 128 Wash.2d 553 , 910 P.2d 475, 478 (1996); State v. Oliver, 101 Ohio App.3d 587 , 656 N.E.2d 348, 351 , cert. d…
cited Cited as authority (rule) Alexander v. Smith
E.D. Mich. · 2004 · confidence medium
Id,.; People v. Simmons, 140 Mich.App. 681, 684 , 364 N.W.2d 783, 785 (1985).
examined Cited as authority (rule) Napoleon Momon v. State of Tennessee (3×)
Tenn. Crim. App. · 1997 · confidence medium
App. 1992); Taylor v. State, 843 P.2d 682, 687 (Kan. 1992); Commonwealth v. Waters, 506 N.E. 2d 859, 864-865 (Mass. 1987); People v. Simmons, 364 N.W.2d 783, 784 (Mich. App. 1985); State v. Rosillo, 281 N.W.2d 877, 878 (Minn. 1979); Culberson v. State, 412 So.2d 1184, 1186 (Miss. 1982); State v. Hamm, 818 P.2d 830, 833 (Mont. 1991); Ingle v. State, 546 P.2d 598, 599 (Nev. 1976); State v. Savage, 577 A.2d 455, 471 (N.J. 1990); State v. Duran, 731 P.2d 374, 376 (N.M.
discussed Cited as authority (rule) State v. Fields (2×)
Idaho · 1995 · confidence medium
In Aragon , this Court recognized that requiring the district court to secure an on-the-record waiver from the defendant might “ ‘provoke substantial judicial participation that could frustrate a thoughtfully considered decision by the defendant and counsel who are designing trial strategy.’ ” Id. (quoting People v. Simmons, 140 Mich.App. 681, 684-86 , 364 N.W.2d 783, 785 (1985)); see also United States v. Joelson, 7 F.3d 174, 177 (9th Cir.), cert. denied, — U.S. —, 114 S.Ct. 620 , 126 L.Ed.2d 584 (1993) (The trial court “has no duty to advise the defendant of his right to testif…
cited Cited "see" People of Michigan v. Carla Kay Cole
Mich. Ct. App. · 2021 · signal: see · confidence high
See Simmons, 140 Mich App at 685 .
discussed Cited "see" People of Michigan v. Roy Harris James Jr (2×)
Mich. Ct. App. · 2018 · signal: see · confidence high
See People v Simmons, 140 Mich App 681, 684 ; 364 NW2d 783 (1985).
discussed Cited "see" People of Michigan v. Roy Harris James Jr (2×)
Mich. Ct. App. · 2018 · signal: see · confidence high
See People v Simmons, 140 Mich App 681, 684 ; 364 NW2d 783 (1985).
discussed Cited "see" People of Michigan v. Smokey Dee Crutcher-Bey
Mich. Ct. App. · 2016 · signal: see · confidence high
See People v Simmons, 140 Mich App 681, 685 ; 364 NW2d 783 (1985) (denying the defendant’s request for remand for an evidentiary hearing when the defendant failed to provide an adequate reason for the request).
discussed Cited "see" People v. Oscar Moore (2×)
Mich. Ct. App. · 1987 · signal: see · confidence high
See People v Simmons, 140 Mich App 681, 683-684 ; 364 NW2d 783 (1985), lv den 422 Mich 963 (1985).
cited Cited "see" People v. Jones
Mich. Ct. App. · 1985 · signal: see · confidence high
See People v Simmons, 140 Mich App 681 ; 364 NW2d 783 (1985).
discussed Cited "see, e.g." State v. Morel-Vargas (2×)
Conn. · 2022 · signal: compare · confidence low
Compare People v. Cook, 285 Mich. App. 420 , 422–23, 776 N.W.2d 164 (2009) (noting that defendant’s waiver of right to jury trial did not comply with statute that required trial court to advise defendant in open court of right to trial by jury before defendant can be said to validly waive right), with People v. Sim- mons, 140 Mich. App. 681, 684 , 364 N.W.2d 783 (‘‘declin- [ing] to require an on-the-record waiver of defendant’s right to testify’’), appeal denied, 422 Mich. 963 (1985).
discussed Cited "see, e.g." People of Michigan v. Leon Eugene Jackson Jr
Mich. Ct. App. · 2020 · signal: see also · confidence low
By failing to offer any meaningful discussion of the proposed evidence about which he now complains, defendant not only failed to establish the factual predicate for his claim, People v Carbin, 463 Mich 590, 600 ; 623 NW2d 884 (2001), he abandoned it on appeal, People v Martin, 271 Mich App 280, 315 ; 721 NW2d 815 (2006); see also People v Simmons, 140 Mich App 681, 685-686 ; 364 NW2d 783 (1985) (rejecting a claim of ineffective assistance of counsel premised on defense counsel’s purported failure to advise the defendant about his right to testify because the defendant failed to allege that …
Retrieving the full opinion text from the archive…
People
v.
Simmons
Docket 76597.
Michigan Court of Appeals.
Feb 6, 1985.
364 N.W.2d 783
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O’Hair, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Jan J. Raven, Assistant Prosecuting Attorney, for the people., Theodore B. Sallen, for defendant on appeal.
Bronson, Hood, Shepherd.
Cited by 121 opinions  |  Published
6 passages pin-cited by 8 cases
Pinpoint authority: #7,317 of 633,719
Citer courts: Michigan Court of Appeals (8)
Shepherd, J.

A jury convicted defendant of each charge contained in a three-count information, to-wit: breaking and entering with intent to commit a felony, MCL 750.110; MSA 28.305, assault with intent to commit first-degree criminal sexual conduct, MCL 750.520g; MSA 28.788(7), and first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2). Defendant did not testify at trial. The trial court sentenced him to concurrent prison terms of from 5 to 15 years, 5 to 10 years and 15 to 25 years. Defendant appeals as of right, claiming that the trial court erred by not insisting upon an on-the-record waiver by defendant of his right to testify in his own behalf. We find that no such procedure is required, and affirm the convictions.

[*683] Defendant asserts that an accused has a fundamental right to testify at trial. According to defendant, the importance of this right creates an obligation on the part of the trial court to ensure that defendant’s waiver of the right is knowing and voluntary. There are no authoritative decisions on this issue in this jurisdiction. Defendant cites People v Curtis, 681 P2d 504, 512 (Colo, 1984), in support of his claim. In Curtis, the Colorado Supreme Court held "that the right to testify is so fundamental that the effectiveness of its waiver must be tested by the same constitutional standards applicable to waiver of the right to counsel”. See, Johnson v Zerbst, 304 US 458; 58 S Ct 1019; 82 L Ed 1461 (1983). The court acknowledged that it was in the minority of courts which have considered the issue:

"While the courts have generally accepted that the constitutional right to testify imposes certain obligations on defense counsel, a majority of courts addressing the issue have not required that waiver of the right to testify be made in open court, on the record. See United States v Ives, 504 F2d 935 (CA 9, 1974), vacated on other grounds 421 US 944 [95 S Ct 1671; 44 L Ed 2d 97] (1975); People v Mosqueda, 5 Cal App 3d 540; 85 Cal Rptr 346 (1970); State v McKinney, 221 Kan 691; 561 P2d 432 (1977); State v Hutchinson, 458 SW2d 553 (Mo, 1970); State v Albright, 96 Wis 2d 122; 291 NW2d 487, cert den 449 US 957 [101 S Ct 367; 66 L Ed 2d 223] (1980). But see Culberson v State, 412 So 2d 1184 (Miss, 1982); Hollenbeck v Estelle, 672 F2d 451, 452 (CA 5, 1982); State v Noble, 109 Ariz 539; 514 P2d 460 (1973).” Curtis, supra, p 512, fn 9.

We agree with defendant’s assertion that the criminal defendant has a right to testify at trial and that this right is so entrenched in concepts of ordered liberty that it has attained constitutional status. US Const, Am XIV; Const 1963, art 1,[*684] §§ 17, 20. It has been more than a century since the Legislature removed the common law disqualification of defendants from testifying. MCL 600.2159; MSA 27A.2159, People v Renno, 392 Mich 45, 52; 219 NW2d 422 (1974). In People v Quick, 51 Mich 547; 18 NW 375 (1884), the Supreme Court stated, "The purpose in permitting the defendant to testify on his own behalf is precisely this: to permit him to make his own defence.” We hold that an accused’s right to convey his side of the story to the jury is contained in the constitutional guarantee of due process of law.

This conclusion does not resolve the instant matter, however. For example, the right to secure witnesses for the defense is also a fundamental right, US Const, Am VI; Const 1963, art 1, § 20, yet we have held that selection of defense witnesses, if any, is a strategic consideration left to the trial attorney. People v Harlan, 129 Mich App 769, 779; 344 NW2d 300 (1983); People v Grant, 102 Mich App 368, 374; 301 NW2d 536 (1980). We agree with the majority of courts which have addressed this issue and decline to require an on-the-record waiver of defendant’s right to testify. Such a requirement would necessarily entail the trial court’s advising defendant of his right to testify. As the Wisconsin Supreme Court stated in Albright, supra, a formal waiver requirement might "provoke substantial judicial participation that could frustrate a thoughtfully considered decision by the defendant and counsel who are designing trial strategy”. Moreover, as noted by the Court in United States v Ives, 504 F2d 935, 939-940 (CA 9, 1974):

"The privilege of a criminal defendant to testify is the other side of the coin on which appears the privilege against self-incrimination. In the context of a[*685] criminal trial, the latter privilege is 'claimed’ by the defendant’s doing nothing; in fact it need not be 'claimed’ at all. The defendant simply does not testify. If he does not elect to testify, he must be deemed to have waived his privilege to do so. It would make no sense and, in the light of Griffin v California, 380 US 609; 85 S Ct 1229; 14 L Ed 2d 106 (1965), it would introduce possible error into the trial to require that the court or the prosecutor ask the defendant whether he wishes to testify. That is the reason why the defendant must claim his privilege to testify or be deemed to have waived it.”

Our holding does not leave defendants without protection insofar as their right to testify is concerned. If the accused expresses a wish to testify at trial, the trial court must grant the request, even over counsel’s objection. If the record shows that the trial court prevented defendant from testifying, we will not hesitate to reverse its judgment. On the other hand, if defendant, as in this case, decides not to testify or acquiesces in his attorney’s decision that he not testify, "the right will be deemed waived”. Albright, supra.

Defendant prays for a remand for an evidentiary hearing regarding defense counsel’s "failure to present any defense theory, witnesses, or to advise defendant that he had a right to testify”. Neither these allegations nor the record before us provide any basis for relief. Counsel presented a theory of mistaken identification. As noted above, whether to call witnesses is a matter of trial strategy. Defendant does not refer specifically to any individuals whose testimony would have aided his cause. Only where counsel’s failure to call a witness deprives defendant of a substantial defense is he entitled to relief. People v Armstrong, 124 Mich App 766, 771-772; 335 NW2d 687 (1983). As for counsel’s alleged failure to tell the defendant of[*686] his right to testify, it is noteworthy that defendant fails to allege that he was ignorant of that right. Even assuming he was unaware, defendant does not allege that he would have testified if presented with the option. Finally, there is no indication of what his testimony would have been. We presume "that counsel’s conduct falls within the wide range of reasonable professional assistance”. Strickland v Washington, — US —; 104 S Ct 2052; 80 L Ed 2d 674, 694 (1984). "In the absence of a record made in connection with a motion for new trial, all of the actions of counsel complained of by defendant here are presumed to be taken pursuant to defense counsel’s permissible trial strategy.” Harlan, supra, p 779.

Affirmed.