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Final Copy 286 Ga. 695 S09G1015. THE STATE v. NEJAD. Benham, Justice. Appellee Ali Nejad was tried in Fulton County and convicted of various sexual offenses as well as assault with a deadly weapon and aggravated battery. The trial court1 denied Nejad's motion for new trial based on ineffective assistance of counsel, finding that Nejad failed to prove prejudice from any failure of trial counsel to properly define his right to testify, inasmuch as the credible evidence at the hearing shows that Mr. Nejad was in fact so informed by the trial court that the ultimate decision whether to testify was his alone, made after hearing the advice of his attorneys. The Court of Appeals reversed the judgment of conviction based on its finding that Nejad had received ineffective assistance of counsel. Nejad v. State, 296 Ga. App. 163 (1) (674 SE2d 60) (2009). The appellate court also determined the trial judge had erred when he instructed the jury that a pellet gun was a deadly weapon per se. Id. at Division 2. We granted the State's petition for a writ of certiorari to the Court of Appeals and asked the parties to address whether the appellate court erred in reversing the trial court's determination that Nejad had

Judge Jerry W. Baxter heard the post-conviction motion after the trial judge, T. Jackson Bedford, Jr., on motion of Nejad, recused himself from further participation in Nejad's case. The term "trial court" will refer to Judge Baxter while the term "trial judge" will refer to Judge Bedford.

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been advised of his right to testify and in finding error in the giving of the per se deadly weapon jury instruction. For the reasons that follow, we conclude the Court of Appeals erred in making both rulings, and we reverse the judgment entered by the Court of Appeals. 1. Following Nejad's employment of post-conviction counsel and the filing of a motion for new trial contending trial counsel had rendered ineffective assistance, the trial court conducted a hearing at which Nejad testified that his lead trial counsel had not informed Nejad of his right to testify and had refused to permit Nejad to testify at his trial despite Nejad's desire to do so.2 Lead trial counsel testified at the hearing and admitted he had engaged in the conduct to which Nejad had testified. Compare Finch v. State, 287 Ga. App. 319 (1) (b) (651 SE2d 478) (2007) (where defendant testified that trial counsel did not consult with him about his right to testify and trial counsel testified that he and the defendant had discussed the right to testify and the defendant had decided not to testify). The assistant district attorney who prosecuted Nejad testified at the hearing that she had a vivid recollection of the trial judge informing Nejad

A criminal defendant has a constitutional right to testify in his or her defense, that right is personal to the defendant, and the decision whether to testify is made by the defendant after consultation with counsel. Mobley v. State, 264 Ga. 854 (2) (452 SE2d 500) (1995), citing Rock v. Arkansas, 483 U. S. 44 (107 SC 2704, 97 LE2d 37) (1987), and United States v. Teague, 953 F2d 1525 (11th Cir. 1992). Defense counsel bears the primary responsibility for advising the defendant of his right to testify or not to testify, the strategic implications of each choice, and that it is ultimately for the defendant himself to decide. This advice is crucial because there can be no effective waiver of a fundamental constitutional right unless there is an "intentional relinquishment or abandonment of a known right or privilege." [Cit.] Mobley v. State, supra, 264 Ga. at 856, quoting Johnson v. Zerbst, 304 U. S. 458, 464 (58 SC 1019, 82 LE 1461) (1938). 2

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that he had the right to testify and that it was Nejad's decision whether to exercise that right, and of Nejad waiving that right; Nejad and his trial counsel testified at the hearing that the trial judge did not so advise Nejad. Another of Nejad's trial attorneys testified that the attorneys representing Nejad were in agreement it was not in his best interest to testify and that the attorney originally thought the trial judge had made Nejad aware of his right to testify because "that was consistent with normal practice." The attorney testified that while he could not say it did not happen, his recollection did not support that it had happened. The third defense attorney testified it was "a general practice of most courts" to ensure the non-testifying defendant was aware of his right to testify, but he had no specific memory of the trial court engaging in such a colloquy with Nejad. The transcript of Nejad's trial certified by the court reporter does not reflect that the trial judge informed Nejad of his right to testify and that the decision whether to testify was to be made by Nejad after consulting with counsel. Compare Upton v. Parks, 284 Ga. 254 (3) (664 SE2d 196) (2008) (noting trial transcript colloquy in which trial court explained to the defendant he had the right to testify, that it was his decision, and that he was not required to follow counsel's advice on the matter).3 The transcript of the hearing on the
There is no requirement in Georgia that the trial court engage in an on-the-record colloquy with a non-testifying defendant to inform the defendant of the right to testify and to obtain a knowing and intelligent waiver of that right. Burton v. State, 263 Ga. 725 (6) (438 SE2d 83) (1994). See also Coonce v. State, 171 Ga. App. 20 (3) (318 SE2d 763) (1984) (under ordinary circumstances, where not required by statute and the defendant possesses ordinary intelligence and is under no duress, the trial court need not inform the defendant of the right to testify). However, it has been suggested that trial courts should engage in such a colloquy as a prophylactic measure. See Jenkins v. State, 268 Ga. 468, 474 (491 SE2d 54) (1997) (Thompson, J., concurring). See also Timothy O'Neill, Vindicating the Defendant's Constitutional Right to 3
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motion for new trial makes it clear that the State's position was that the certified trial transcript did not fully disclose what transpired in the trial court while Nejad's position was that the certified transcript was true, complete and correct. See OCGA

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