Dano Joseph Armstrong, Jr. v. Commonwealth of Virginia, 1775151

Police stopped the defendant's vehicle and, after a search, seized a blue container containing a large quantity of marijuana; defendant was charged with possession with intent to distribute (third or subsequent offense).
At the suppression hearing the defendant testified that the car and the marijuana were not his and that he did not consent to the vehicle search; a corroborating witness testified similarly.
The trial incorporated the suppression-hearing testimony into the guilt-phase record; defense counsel then announced the defense had no further evidence and rested; the court denied the Commonwealth’s motion to strike and found the defendant guilty.
Five months later, new counsel moved to vacate and for a new trial, alleging the defendant had been denied his constitutional right to testify at trial because trial counsel rested over his objection.
At the hearing on the motion the defendant testified he had wanted to testify about his medical use of marijuana and that counsel failed to call him; the trial court denied the motion, noting the defendant’s suppression testimony had been part of the trial and that further trial testimony would have conflicted with prior testimony and risked perjury.
The Court of Appeals affirmed, concluding the defendant’s right to testify was not violated and the trial court had no duty to conduct an on-the-record colloquy with the defendant about waiving that right.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Armstrong was denied his constitutional right to testify at trial because counsel rested without calling him	Armstrong placed his testimony into the trial by incorporating his suppression-hearing testimony; therefore no deprivation	He wanted to testify further at trial about medical use and large-quantity possession but counsel rested against his wishes	Held: No violation — suppression testimony was incorporated into the trial and constituted his testimony in the case-in-chief
Whether the trial court had an affirmative duty to conduct an on-the-record colloquy with the defendant to ensure any waiver of the right to testify was knowing and voluntary	No duty to engage in such colloquy; doing so would intrude on attorney-client relations and counsel has primary duty to advise defendant	The court should have inquired of the defendant directly whether he waived his right to testify	Held: No affirmative duty to conduct a colloquy; the court could rely on defense counsel’s representation that there was no further evidence

Gallagher v. Commonwealth, 284 Va. 444 (cites de novo review standard for constitutional claims)
United States v. McMeans, 927 F.2d 162 (4th Cir.) (defendant retains ultimate authority to decide whether to testify)
Jones v. Barnes, 463 U.S. 745 (counsel controls appellate advocacy; cited regarding counsel’s role)
Rock v. Arkansas, 483 U.S. 44 (defendant’s right to testify is protected but not absolute)
United States v. Midgett, 342 F.3d 321 (4th Cir.) (right to testify does not include a right to commit perjury)