Thomas v. State, 293 A.3d 139

Marlon Thomas was arrested and indicted on multiple sexual-offense and related charges; he faced a two-day bench trial in 2021.
During opening, defense counsel stated Thomas "may testify. He may not. I don’t know."
After the State rested, the court recessed to allow defense counsel to confer; when trial resumed the defense rested and Thomas did not testify; there was no on-the-record colloquy with Thomas about his right to testify or waiver.
The Superior Court judge convicted Thomas of second-degree rape, third-degree unlawful sexual contact, tampering, conspiracy, witness tampering counts, and bond non-compliance, and sentenced him to 55 years, suspended after 25.
On appeal Thomas argued the trial court erred by not directly informing him of his right to testify and ensuring any waiver was voluntary, knowing, and intelligent, invoking U.S. and Delaware constitutional protections.
The Delaware Supreme Court affirmed: Thomas waived his state-constitutional claim on appeal; federal law does not require a sua sponte colloquy; and the bench-trial judge handled the issue carefully so as not to prejudice Thomas.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court was required to conduct a sua sponte colloquy with the defendant to ensure a voluntary, knowing, and intelligent waiver of the right to testify	State: No court-mandated colloquy required; customary practice suffices and Thomas failed to preserve state-constitutional claims	Thomas: Right to testify is a fundamental personal right under U.S. and Delaware Constitutions; court must affirmatively ensure waiver is voluntary, knowing, intelligent	Court: Affirmed. State claim waived for lack of appellate briefing; under federal law no automatic colloquy is required; bench-trial circumstances showed the judge handled the matter appropriately and did not violate federal rights

Rock v. Arkansas, 483 U.S. 44 (recognizes the defendant's right to testify as a fundamental constitutional right)
Riggins v. Nevada, 504 U.S. 127 (reinforces protections against compelled testimony and related due-process concerns)
McCoy v. Louisiana, 138 S. Ct. 1500 (addresses defendant's personal and fundamental choices in defense strategy)
Cooke v. State, 977 A.2d 803 (Del. 2009) (Delaware precedent recognizing the importance of the defendant's decision to testify)
United States v. Pennycooke, 65 F.3d 9 (3d Cir. 1995) (discusses risks of judicial intrusion into the decision not to testify)
United States v. Stark, 507 F.3d 512 (7th Cir. 2007) (holds no per se federal requirement for a court to question a defendant sua sponte about waiving the right to testify)