Flynn v. State , 497 N.E.2d 912 ( 1986 )

DeBRULER, Justice,

dissenting.

The majority opinion has set forth in detail the circumstances surrounding the motion of the defense to reopen its case. The motion sought an opportunity for the defendant to testify in his own defense and to present the testimony of one Tony Durham. There is good reason to believe that Flynn himself would have denied participation in the crime and perhaps offered an alibi In my opinion, the ruling of the court denying the motion, insofar as it denied the defendant Flynn himself the chance to testify was an unreasonable exercise of the trial court's authority.

The right of the criminal defendant to testify and present his side of the story to the trier of fact in law set apart from the more general right to present defenses. The right received express mention in the Indiana Bill of Rights which provides "In all criminal prosecutions, the accused shall have the right ... to be heard by himself and counsel ..." IND. CONST. Art. 1, Sec. 18. Based upon this and the obvious pertinence of the defendant's own testimony and notions that go to the fair administration of criminal justice, courts in practice generally take special measures to facilitate the exercise of the right. At the appellate level such measures can be observed when courts refer the motion of the defendant to reopen after resting to give his own testimony as being a motion to withdraw the waiver of the right to testify which occurred when the defense rested. When for example courts consider whether a trial court discretionary ruling upon a motion to withdraw a waiver of jury trial was error, closer judicial scrutiny is in fact often apparent. Cf. Williams v. State (1974), 159 Ind.App. 470, 307 N.E.2d 880. In the case at bar, when the personal right of the defendant is viewed in this height ened fashion and added to the detailed circumstances set forth in the majority opinion, it reveals that the ruling of the trial court was unreasonable and an abuse of discretion. Therefore I would reverse the judgment of the trial court.