This appeal presents several issues concerning a criminal defendant’s constitutional right to testify at his trial, issues that arise in a ease where a defendant does not testify. The specific issues are (1) whether the decision to testify is ultimately for the defendant or for trial counsel to make; (2) if the right to testify is “personal” to the defendant in the sense that only the defendant may validly relinquish it, whether an obligation to advise the defendant concerning the right to testify rests with either the trial judge or defense counsel; and (3) if the responsibility rests with defendant’s counsel, what standard governs a court’s consideration of a defendant’s claim that trial counsel either failed to inform him that the decision to testify was ultimately his to make, or overrode his desire to testify.
These issues arise on an appeal by James Eric Brown from the July 15, 1996, judgment of the District Court for the Southern District of New York (Charles S. Haight, Jr., Judge) denying Brown’s petition for habeas corpus under 28 U.S.C. § 2254 to challenge his state court conviction. The petition alleged that defense counsel prevented Brown from testifying and/or failed to inform the defendant that the ultimate decision whether to testify was his to make. We conclude that the decision whether a defendant should testify at trial is for the defendant to make, that trial counsel’s duty of effective assistance includes the responsibility to advise the defendant concerning the exercise of this constitutional right, and that the two-part test established in
Strickland v. Washington,
Background
Brown was arrested in February 1990 by local police for the murder of Eddie Lee Barr. After waiving his Miranda rights, Brown gave a series of statements to the police concerning Barr’s death. Although Brown repeatedly denied any culpability in the offense, he eventually admitted, in his fourth statement to the police, that he had shot Barr to death during an altercation. Brown’s videotaped confession given on the morning after his arrest, substantially similar to his fourth statement, contains the following description of the episode.
At the time of the murder, Brown lived with his mother and brother in Apartment 6H of a building located at 20 Paladino Avenue in Manhattan. Barr, the eventual victim, lived in the Bronx but often stayed with his mother, who lived in Apartment 6G, next door to the Browns. The two families had been neighbors for more than twenty-five years, and Brown and Barr had known each other since childhood. Although the families generally got along over the years, several of the Browns, including the petitioner, suspected Barr of breaking into their apartment in January 1990 and stealing some kitchen utensils. Brown also blamed Barr for helping Brown’s younger brother become addicted to crack cocaine. Brown admitted, however, that prior to 1990, he had no problems with Barr.
Around 11 p.m. on the evening of February 21, 1990, Brown, who carried a loaded, unlicensed revolver in a shoulder holster, was on his way home after visiting his girlfriend. As he walked along the sixth-floor hallway toward Apartment 6H, he noticed that Barr was leaning into Apartment 6G and speaking in a low voice with someone inside. As Brown walked past, Barr slammed his door and walked toward Brown. After the two men exchanged some initial unpleasantries, including Brown’s accusation that Barr had *75 broken into, and stolen valuables from, the Browns’ apartment, an altercation ensued. At first, Barr simply walked away from Brown toward the staircase, and denied Brown’s accusations. Brown pursued the victim and continued to accuse him of the burglary and theft.
While the two men were standing on the sixth-floor landing of the staircase, Barr put his hands on Brown’s chest and made a “grabbing motion.” Brown responded by seizing Barr by his wrists. Scuffling, the two men eventually made their way down the stairs to the fifth-floor landing, all the while maintaining their grips on one another. As they reached the fifth-floor landing, Brown pushed Barr away from him. While separated from Brown by a few feet, Barr noticed that Brown was carrying a pistol under his jacket. Barr then “went for” the gun and managed to get two or three fingers on the end of its handle. Brown realized, however, that Barr could not remove the gun from its holster, even if he had had a better grip on the weapon, because the holster had to be unsnapped for the gun to be removed. Brown then decided to reach for the gun himself and quickly overcame Barr’s hand on the weapon. Brown swiftly unsnapped the holster and pulled the revolver out.
Brown pushed Barr’s hand away and Barr moved one step back. Brown then took two steps back, holding the gun pointed at Barr. Barr then made a move toward Brown. Brown aimed at “about chest level” and fired one shot at Barr. Struck by the bullet, Barr moaned, took several steps back, and “hit the wall with his back.”
At this point, the two men were approximately three or four steps apart. Brown fired again. After this second shot, Barr was still standing, but beginning to fall to the floor. As Barr fell, letting out a deep moan, Brown fired again. After each shot, Barr “bounced” a bit and moaned. In all, Brown fired five shots at Barr’s chest and leg areas, four of which hit the victim.
Brown “panicked,” quickly fled the building, and spent the evening at his girlfriend’s house. Barr, meanwhile, crawled back to his mother’s apartment on the sixth floor. He eventually identified Brown as the shooter to his family, to the emergency medical service team that took him to the hospital, and to a police officer who arrived on the scene soon after the shooting. Barr died shortly after arriving at the hospital. Brown gave himself up to the police the following day.
At Brown’s trial for murder and criminal possession of a weapon, the prosecution established that Barr was unarmed during the incident in question, that Brown did not believe that Barr possessed a weapon, and that at least three of the four bullets that struck Barr were fired while the victim was already lying prone on the ground. The jury saw Brown’s videotaped confession. The defense case relied on the defense of justification, and consisted solely of the testimony of Brown’s mother. She stated that while she generally got along with Barr’s family, she suspected Barr of having broken into and stolen items from her apartment shortly prior to his death. Brown did not testify.
The jury convicted Brown of murder in the second degree and criminal possession of a weapon in the second and third degrees. N.Y. Penal Law §§ 125.25(1), 265.03 & 265.02(4) (McKinney 1987, 1989). Brown’s direct appeal challenged his conviction and sentence on several grounds, including a claim that the prosecution had not disproved his justification defense beyond a reasonable doubt, as required by New York law.
1
The Appellate Division affirmed the conviction and ruled that “defendant’s justification defense was disproved beyond a reasonable doubt by evidence showing that defendant could have retreated with complete safety, and the number of shots fired into the victim.
Nor did defendant testify that he feared for his life.” People v. Brown,
*76 In March 1993, Brown moved to vacate the conviction in the state trial court pursuant to N.Y. Crim. Proc. Law § 440.10(1)(h) (McKinney 1994). Seizing upon the Appellate Division’s observation that he had not testified that he feared for his life, Brown claimed for the first time that ineffective assistance of trial counsel had prevented him from testifying. He alleged that his attorney had “taken it upon himself to waive [Brown’s] fundamental right to testify,” despite Brown’s repeated “insistence” that he wanted to testify, and had failed to inform him that the ultimate decision whether to testify belonged to him. Brown further alleged that, had he taken the stand, he would have testified that he had a “true, real, and well founded fear” of Barr based upon their numerous prior altercations, Barr’s prior threats against Brown, and Brown’s previous observations of Barr’s “violent temper” and “acts of violence.” Such testimony would have contradicted Brown’s statements in the videotaped confession that he had not had any prior negative encounters with Barr. The state trial court denied Brown’s motion, ruling that (i) Brown’s purported dissatisfaction with counsel’s performance came “[o]nly through the convenience of hindsight,” and that (ii) counsel’s decision not to call Brown as a witness was reasonable, because the videotaped confession played to the jury sufficiently set forth the elements of the justification defense and because, had he taken the stand, Brown would have been cross-examined by the prosecution about the three contradictory statements he had made to the police following his arrest. People v. Brown, Ind. No. 2950/90 (N.Y.Sup.Ct. Mar. 22, 1993). Leave to appeal to the Appellate Division was denied.
Brown filed his section 2254 petition in February 1995, alleging that his Sixth Amendment right to effective assistance of counsel had been violated because his attorney failed to inform him that he “enjoyed the fundamental right to testify in his own defense and that the decision to testify is personal to [him].” Brown again claimed that trial counsel overrode his desire to testify in his own defense, and contended that he would have testified that his past encounters with the victim created a real and well-founded fear for his life during the encounter that preceded the shooting.
In a report and recommendation, Magistrate Judge Andrew Peck, relying on the two-prong
Strickland
analysis suggested by both Brown and the respondent, concluded that Brown could not satisfy either the performance or the prejudice prong of this test and recommended denial of Brown’s petition. Judge Haight adopted the report and recommendation, agreeing with the Magistrate Judge that “Brown’s present stated desire to have testified is highly suspect, and that in any event, the result [at trial] would not likely have been different if Brown had testified.”
Brown v. Artuz,
No. 95 Civ. 2740,
Discussion
In
Rock v. Arkansas,
Recognition of a constitutional right to testify in one’s own defense only begins the inquiry in this case. Important questions concerning this right were not answered by Rock and have not been resolved by this Circuit: (1) Is the decision whether to testify to be made by the defendant or his trial counsel? (2) If the decision is the defendant’s, does either the trial judge or the defendant’s attorney have a responsibility to inform the defendant of the existence and nature of this right? (3) If defense counsel has the responsibility to inform the defendant of his right to testify, what standard governs review of a claim that counsel failed to exercise that responsibility or even pre *77 vented the defendant from testifying? We discuss each question in turn.
1. The Decision to Testify
As the Eleventh Circuit stated in a comprehensive in banc opinion, criminal defendants at trial “possess essentially two categories of constitutional rights: those which are waivable by defense counsel on the defendant’s behalf, and those which are considered ‘fundamental’ and personal to the defendant, waivable only by the defendant.”
United States v. Teague,
Arguments are available to support either position. It might be argued, for instance, that once a defendant waives his right to self-representation and retains counsel to represent him during trial, he thereby forfeits his right to determine all tactical aspects of the conduct of trial, including whether certain objections will be made, how a cross-examination of a prosecution witness will be conducted, and which witnesses, including the defendant himself, will testify for the defense. Because the decision whether the defendant will testify requires weighing the potential benefits against numerous dangers, it might well be left to defense counsel, like other strategic decisions. Defense counsel has superior experience with the criminal process and detailed, objective knowledge of the strengths and weaknesses in the defendant’s case. At least one concurring opinion, predating
Rock,
has accepted this argument, noting that the ultimate decision must reside with trial counsel because “[n]o one could seriously contend that a defendant is in a better position to dictate trial strategy than his attorney,” and because “[n]o attorney could discharge [h]is duty [to provide his client with the best possible defense within the law] if he must yield to the personal demands of his client.”
Wright v. Estelle,
However, every circuit that has considered this question has placed the defendant’s right to testify in the “personal rights” category—
i.e.,
waivable only by the defendant himself regardless of tactical considerations.
See, e.g., United States v. Pennycooke,
First, although
Rock
itself did not settle this issue, that decision compared the defendant’s right to testify with the right of self-representation set forth in
Faretta v. California,
2. Protecting the Defendant’s Right to Testify
Having determined that the right to testify is personal to the defendant, we next consider what actions must be taken to protect this right at trial. Specifically, the question arises as to who should bear the responsibility for ensuring that the defendant is informed of the nature and existence of this right and that any decision to waive this right by the defendant is knowingly and intentionally made. The caselaw has assigned this responsibility to either the trial judge or the defense counsel, or left it with the defendant himself.
First, some state courts have ruled that because of the fundamental and personal nature of the right to testify, the trial judge should conduct an on-the-record colloquy with the defendant to inform him of the nature and existence of this right and to ensure that any waiver of the right is knowing and intentional.
See, e.g., People v. Curtis,
Second, other courts reject a requirement that the trial court inform the defendant of his right to testify and obtain an on-the-record waiver, and instead hold the defense attorney responsible for rendering advice concerning the defendant’s personal right to testify.
See, e.g., Teague,
Third, some courts appear to place the burden of protecting the right to testify on the defendant himself. Thus, in
United States v. Martinez,
We agree with those courts that place no general obligation on the trial court to inform a defendant of the right to testify and ascertain whether the defendant wishes to waive that right.
2
Just as the trial judge need not stop a defendant called by defense counsel to the stand and explain the right not to testify, the judge need not intervene when counsel announces that the defendant rests and the defendant has not testified. At the same time, we do not go so far as
Martinez
in relieving defense counsel of a responsibility in the matter. We agree with
Teague
that “[djefense counsel bears the primary responsibility for advising the defendant of his right to testify or not to testify____”
3. Reviewing the Adequacy of Counsel’s Assistance
Because the burden of ensuring that the defendant is informed of the nature and existence of the right to testify rests upon defense counsel, we conclude that this burden is a component of the effective assistance of counsel. As a result, any claim by the defendant that defense counsel has not discharged this responsibility — either by failing to inform the defendant of the right to testify or by overriding the defendant’s desire to testify — must satisfy the two-prong test established in
Strickland v. Washington,
4. Application of Strickland to Brown’s Claim
In the present case, Brown alleged in his habeas petition that “[d]efense counsel never advised petitioner that petitioner enjoyed a fundamental right to testify in his own defense and that the decision to testify is personal to petitioner, and prevented petitioner from exercising his right to testify in his own defense.” As the in banc Eleventh Circuit stated in Teague:
[I]f defense counsel refused to accept the defendant’s decision to testify and would not call him to the stand, counsel would have acted unethically to prevent the defendant from exercising his fundamental constitutional right to testify. Alternatively, if defense counsel never informed the defendant of the right to testify, and that the ultimate decision belongs to the defendant, counsel would have neglected the vital professional responsibility of ensuring that the defendant’s right to testify is protected and that any waiver of that right is knowing and voluntary.
The Magistrate Judge concluded, and the District Judge agreed in adopting the Magistrate Judge’s report and recommendation, that “Brown’s present stated desire to have testified is highly suspect” and that “there can be no doubt from the trial record that Brown was aware of the right to testify and that defense counsel was not going to call Brown to testify.” However, neither the Magistrate Judge nor the District Judge explicitly found that Brown was aware that the ultimate decision whether to testify belonged to him,
see Campos,
As discussed earlier, Brown acknowledges that the only reason he wanted to testify was to demonstrate that the prosecution failed to disprove his defense of justification beyond a reasonable doubt. 3 Specifically, Brown contends that his testimony would have shown that, based on his past experiences with, and observations of, Barr, the victim, he had a “true, real, and well founded fear” of Barr during the encounter on the evening of February 21, 1990. In a proffer accompanying his state court motion to vacate the conviction on the same ground presented in his section 2254 petition, Brown stated that, had he been allowed to take the stand, he would have testified
(1) That the defendant had a true, real and well founded fear of the decedent as a result of a number of previous unrelated altercations between them.
(2) That the decedent had threatened defendant’s life on more th[a]n one occasion in the past as a result of defendant’s refusal to lend him money.
(3) Th[at] decedent had once threatened to kill defendant consequent to an accusation that defendant had been having or had had a sexual relationship with decedent’s girlfriend. The decedent had gone as far as to display a hand gun and advised defendant that should the rumors continue, that he would shoot defendant.
(4) That defendant also feared the decedent as a result of knowing, first hand, that the decedent had a very violent temper, in addition to personally witnessing *81 the decedent perpetrate acts of violence on others in their neighborhood.
Even if Brown had made such statements on the stand, however, there is no reasonable probability that the verdict would have been different. Under New York law, a defendant can use deadly force to defend himself only if, among other things, (1) he subjectively believes that the use of deadly force is necessary, (2) a reasonable person in defendant’s position would believe that the use of deadly force is necessary, and (3) the defendant does not “know[ ] that he can with complete safety as to himself and others avoid the necessity of [using deadly force] by retreating.” N.Y. Penal Law § 35.15(1)-(2) (McKinney 1987);
see generally People v. Goetz,
“If a defendant confronted with deadly force knows retreat can be made with complete safety and fails to do so, the defense [of justification] is lost.”
In re Y.K.,
The entirety of Brown’s proffered testimony would have concerned his past encounters with Barr and how such experiences caused him to fear for his life during their fight on the evening of the shooting. Brown’s testimony could not have supported a reasonable inference in his favor on the retreat element of the justification defense, and the evidence before the jury overwhelmingly established that Brown could have safely retreated without using deadly force. Since the only testimony Brown claims he wanted to present would not have aided his justification defense, Brown was not prejudiced by the purported failure of his trial counsel to inform him of his personal right to testify.
Conclusion
Because there is no reasonable probability that the result of the trial would have been different, even if Brown had testified, as he claims he wished to do, the judgment of the District Court is affirmed.
Notes
. In New York, "justification is a defense, not an affirmative defense, and therefore the People bear the burden of disproving it beyond a reasonable doubt."
See In re Y.K.,
. Several circuits have ruled that although a trial judge generally is not required "to advise the defendant of the right to testify or to obtain an on-the-record waiver of such right,”
Pennycooke, 65
F.3d at 13, "judicial interjection through a direct colloquy with the defendant may be required” in “exceptional, narrowly defined circumstances,”
id.
at 12. For instance, where the trial judge has reason to believe that defense counsel is frustrating the defendant’s desire to testify,
id.
at 13, where the defendant has expressed his desire to testify to the court,
see Ortega v. O'Leary, 843 F.2d
at 261 (7th Cir.1988), or where "there appears to be no rational explanation for the decision” not to testify,
Ortiz,
We do not settle this issue here because Brown’s trial did not present any exceptional circumstances warranting a departure from the general rule that a trial judge has no duty to inform the defendant of his right to testify. Moreover, we note that although a trial judge is
permitted
to conduct such an inquiry even when exceptional circumstances are not present, such colloquy will generally be inadvisable, as judicial interference with counsel’s strategic decision not to place his client on the stand "poses a danger that the judge will appear to encourage the defendant to invoke or waive this right” even when it is unwise to do so.
See, e.g., United States v. Joelson,
. Because, under New York law, the defense of justification cannot be used to defend against a prosecution for criminal possession of a weapon,
see, e.g., People v. Pons,
. A defendant is not required to retreat if he is not the initial aggressor and is attacked within his "dwelling.” N.Y. Penal Law § 35.15(2)(a)(i) (McKinney 1987). This exception does not apply here because, even if we assume that Barr was the initial aggressor, Brown shot Barr on the landing of the fifth floor, while Brown's dwelling was an apartment on the sixth floor.
See People v. Childs,