United States v. Pennycooke ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
8-30-1995
United States v Pennycooke
Precedential or Non-Precedential:
Docket 94-3605
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Recommended Citation
"United States v Pennycooke" (1995). 1995 Decisions. Paper 239.
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 94-3605
UNITED STATES OF AMERICA
v.
COURTNEY DAVE PENNYCOOKE
Courtney Pennycooke,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Crim. No. 94-00033)
Submitted under Third Circuit LAR 34.1(A)
August 21, 1995
BEFORE: GREENBERG, COWEN, and SAROKIN, Circuit Judges
(Filed: August 30, 1995)
Bonnie R. Schlueter
Assistant U.S. Attorney
Frederick W. Thieman
United States Attorney
633 United States Post Office
& Courthouse
Pittsburgh, PA 15219
Attorneys for Appellee
Carl H. Lida
Law Office of Carl H. Lida, P.A.
8181 West Broward Boulevard
Suite 300
Plantation, FL 33324
1
Attorney for Appellant
OPINION OF THE COURT
GREENBERG, Circuit Judge.
I. BACKGROUND
Courtney Dave Pennycooke appeals from the judgment of
conviction and sentence in this criminal case entered on October
20, 1994, following his conviction and sentencing on both counts
of a two-count indictment. Count 1 charged him with conspiracy
to distribute in excess of 50 grams of cocaine base, or crack,
and in excess of 500 grams of cocaine, and Count 2 charged him
with distributing and possessing with intent to distribute in
excess of 50 grams of crack. The court sentenced Pennycooke to
concurrent 13-year terms of imprisonment to be followed by
concurrent five-year terms of supervised release.
Pennycooke advances two grounds for reversal. First,
he argues that the district court erred in failing to advise him
of his right to testify at trial and in failing to elicit an on-
the-record waiver of that right from him. Second, he contends
that the district court's jury instructions were defective as
they did not include a definition of multiple conspiracies. We
conclude that his argument for reversal on the second basis is
clearly without merit and thus we confine our discussion to his
first point over which we will exercise plenary review. United
States v. Bertoli, 40 F.3d 1384, 1397 (3d Cir. 1994). The
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district court had jurisdiction under 18 U.S.C. § 3231 and we
have jurisdiction pursuant to 28 U.S.C. § 1291.
II. DISCUSSION
Pennycooke argues that because the court did not engage
him directly in an on-the-record colloquy regarding his right to
testify or not to testify his constitutional rights were
violated. He emphasizes that he "is uneducated in the ways of
the law," and it thus would be "unfair to assume that [he] would
have any idea that his counsel had waived his most precious right
to testify without so much as a consultation on the record with
him or an announcement on-the-record to the court and the jury."
Br. at 10. Pennycooke also insists that any recourse he might
have in pursuing an ineffective assistance of counsel claim for
the alleged usurpation of his right to testify would be
inadequate. The prosecution, though disputing Pennycooke's legal
argument, does not contend that the court directly advised him
that he had a constitutional right to testify.
It is well established that the right of a defendant to
testify on his or her behalf at his or her own criminal trial is
rooted in the Constitution. Rock v. Arkansas, 483 U.S. 44, 49-
53, 107 S. Ct. 2704, 2708-10 (1987). This right is personal and
thus only the defendant may waive it. See Jones v. Barnes, 463
U.S. 745, 751, 103 S. Ct. 3308, 3312 (1983) ("the accused has the
ultimate authority to make certain fundamental decisions
regarding the case, as to whether to plead guilty, waive a jury,
testify in his or her own behalf, or take an appeal"); United
States v. Joelson, 7 F.3d 174, 177 (9th Cir.), cert. denied, 114
3
S. Ct. 620 (1993); United States v. Teague, 953 F.2d 1525, 1531-33
(11th Cir.), cert. denied, 113 S. Ct. 127 (1992); Ortega v.
O'Leary, 843 F.2d 258, 261 (7th Cir.), cert. denied, 488 U.S.
841, 109 S. Ct. 110 (1988). As a constitutional right "'essential
to due process of law in a fair adversary process,'" Rock v.
Arkansas, 483 U.S. at 51, 107 S.Ct. at 2709 (quoting Faretta v.
California, 422 U.S. 806, 819 n.15, 95 S. Ct. 2525, 2533 n.15
(1975)), a defendant's waiver of the right to testify must be
knowing and intelligent. See Schneckloth v. Bustamonte, 412 U.S.
218, 241, 93 S. Ct. 2041, 2055 (1973).
Nevertheless, other courts of appeals consistently have
held that a trial court has no duty to explain to the defendant
that he or she has a right to testify or to verify that the
defendant who is not testifying has waived that right
voluntarily. See, e.g., United States v. Teague, 953 F.2d at
1533 n.8; United States v. Edwards, 897 F.2d 445, 447 (9th Cir.),
cert. denied, 498 U.S. 1000, 111 S. Ct. 560 (1990); United States
v. Martinez, 883 F.2d 750, 756-60 (9th Cir. 1989), vacated on
other grounds, 928 F.2d 1470 (9th Cir. 1991); Ortega v. O'Leary,
843 F.2d at 261; Siciliano v. Vose, 834 F.2d 29, 30 (1st Cir.
1987); United States v. Bernloehr, 833 F.2d 749, 752 (8th Cir.
1987); United States v. Janoe, 720 F.2d 1156, 1161 (10th Cir.
1983), cert. denied, 465 U.S. 1036, 104 S. Ct. 1310 (1984). We
now join those courts.
The right to testify qualitatively differs from those
constitutional rights which can be waived only after the court
inquires into the validity of the waiver. In anchoring the
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accused's right to testify to the Constitution, the Supreme Court
in Rock v. Arkansas described it as "a necessary corollary to the
Fifth Amendment's guarantee against compelled testimony," 483
U.S. at 52, 107 S.Ct. at 2709. Exercise of either the right to
testify or the right not to testify necessarily would waive the
other right. Thus, a trial court's advice as to the right to
testify "could inappropriately influence the defendant to waive
his [or her] constitutional right not to testify, thus
threatening the exercise of this other, converse,
constitutionally explicit, and more fragile right." Siciliano,
834 F.2d at 30; Martinez, 883 F.2d at 757, 760; United States v.
Campione, 942 F.2d 429, 439 (7th Cir. 1991).
The fact that a criminal defendant, depending on the
facts and circumstances of the case, reasonably could choose
either to testify or not to testify, necessarily means the
determination of whether the defendant will testify is an
important part of trial strategy best left to the defendant and
counsel without the intrusion of the trial court, as that
intrusion may have the unintended effect of swaying the defendant
one way or the other. See, e.g., Martinez, 883 F.2d at 757, 760;
Teague, 953 F.2d at 1533 n.8; Campione, 942 F.2d at 439. For
example, as a matter of strategy and common sense, the defendant
and counsel may wait until well into the trial before deciding
whether the defendant will testify. Thus, the trial court may
not know that the defendant will not testify until the defense
rests. A colloquy on the right to testify at that point not only
would be awkward, see Martinez, 883 F.2d at 760 (citing
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Commonwealth v. Hennessey, 502 N.E.2d 943, 947 (Mass. App. Ct.),
review denied, 504 N.E.2d 1066 (Mass. 1987)), but more
importantly inadvertently might cause the defendant to think that
the court believes the defense has been insufficient. This
belief in turn might prompt the defendant to abandon an
appropriate defense strategy without good reason. See State v.
Albright, 291 N.W.2d 487, 493 (Wis. 1980), cert. denied, 449 U.S.
957, 101 S. Ct. 367 (1980) ("Such admonition is subject to abuse
in interpretation and may provoke substantial judicial
participation that could frustrate a thoughtfully considered
decision by the defendant and counsel who are designing trial
strategy."). Thus, as a general matter, we believe that it is
inadvisable for a court to question a defendant directly about
his or her waiver of the right to testify.
Pennycooke nevertheless urges us not to infer from an
unclear record that he waived his right to testify. He relies on
the dissenting opinions in Martinez and Teague for the position
that such personal, fundamental rights cannot be presumed from
silence to have been waived. In both cases, the dissenting
opinions relied on an analogy to the right to counsel, which the
Supreme Court requires to be waived on the record. Teague, 953
F.2d at 1542 (citing Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct.
1019 (1938); Carnley v. Cochran, 369 U.S. 506, 82 S. Ct. 884
(1962)); Martinez, 883 F.2d at 767 (same). We, however, like the
majority opinion in Martinez, find the analogy unpersuasive when
a defendant appears in court with an attorney. Martinez, 883
F.2d at 757. See also United States ex rel. Soto v. United
6
States, 504 F.2d 1339, 1344 n.16 (3d Cir. 1974) (court need not
advise defendant sua sponte of right to proceed pro se).1 After
all, the colloquy required to waive the right to counsel is
important precisely because the defendant is waiving the right
when unrepresented. In the right to testify cases, however, the
defendant is represented by counsel throughout the trial, and the
court is entitled to -- indeed should -- presume that the
attorney and the client have discussed that right.2
Further, because of the importance of the right to
counsel, courts presume that a rational defendant will choose to
be represented by counsel. See Gideon v. Wainwright, 372 U.S.
335, 344, 83 S. Ct. 792, 796 (1963) ("[T]here are few defendants
charged with crime, few indeed, who fail to hire the best lawyers
they can get to prepare and present their defenses."). That
presumption -- that defendants with competent counsel are better
off than those without -- lies, in fact, at the heart of the
right to counsel in the first place. Id. ("[P]recedents [and]
reason and reflection require us to recognize that in our
adversary system of criminal justice, any person haled into
court, who is too poor to hire a lawyer, cannot be assured a fair
trial unless counsel is provided for him."). That makes it
especially important for the court to ensure that a waiver of the
1
Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, overruled
the Soto holding that a defendant does not have a constitutional
right to proceed pro se but it did not disturb Soto to the extent
that the Soto court indicated that even if the defendant did have
that right the district court was not obliged to advise him or
her of it.
2
We are not addressing the situation in which a defendant is pro
se as Pennycooke was represented by counsel.
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right is made knowingly and competently. Such a policy, of
course, does not apply with respect to the right to testify,
however, as we cannot say that a rational defendant will, other
things being equal, choose to testify. Indeed, a defendant when
testifying necessarily waives the right not to testify, but the
trial court is not required to elicit an on-the-record, knowing
and intelligent waiver of that right. Martinez, 883 F.2d at 756-
57. We therefore hold that usually a court need not advise a
defendant either directly or through a colloquy with counsel of
his or her right to testify.
Nevertheless in exceptional, narrowly defined
circumstances, judicial interjection through a direct colloquy
with the defendant may be required to ensure that the defendant's
right to testify is protected. For example, in Ortega v.
O'Leary, 843 F.2d 258, the defendant repeatedly interrupted the
trial to express his desire to testify. The trial court
questioned his attorney about the defendant's statements and the
attorney indicated that he and the defendant made a joint
decision that the defendant would not testify. Despite the
defendant's interjection that his attorney was lying, the trial
court did not inquire further and denied the defendant's
continuing requests to testify. The Court of Appeals for the
Seventh Circuit, on a habeas corpus appeal, found error in this
procedure.3 The court emphasized that the right to testify is
3
The Ortega court nevertheless denied petitioner's writ of habeas
corpus, finding that the error was harmless beyond a reasonable
doubt. Ortega, 843 F.2d at 262-63.
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personal to the defendant and thus neither may be waived by
counsel nor denied by the trial court. Ortega, 843 F.2d at 261.
Although the court recognized that while trial courts "have no
affirmative duty to determine whether a defendant's silence is
the result of a knowing and voluntary decision not to testify,"
they "must take steps to insure that important constitutional
rights have been voluntarily and intelligently waived." Id.
Thus, the court cautioned trial courts to "carefully consider a
defendant's request to exercise his or her constitutional rights,
particularly the right to testify." Id. Where, in furtherance
of trial strategy, defense counsel nullifies a defendant's right
to testify over the defendant's protest, the defendant clearly
has been denied the right to testify. In such a case, it may be
advisable that the trial court inquire discreetly into the
disagreement and ensure that constitutional rights are not
suppressed wrongly.
But that situation is the exception, not the rule.
Where the trial court has no reason to believe that the
defendant's own attorney is frustrating his or her desire to
testify, a trial court has no affirmative duty to advise the
defendant of the right to testify or to obtain an on-the-record
waiver of such right. The duty of providing such advice and of
ensuring that any waiver is knowing and intelligent rests with
defense counsel. Here, we have no reason to depart from the
usual rule and we therefore hold that the district court did not
err in not advising Pennycooke of his right to testify and in not
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obtaining from Pennycooke an on-the-record waiver. See United
States v. Bernloehr, 833 F.2d at 752.
In reaching our result, we realize that a convicted
defendant may assert a claim that the trial attorney gave
ineffective assistance under Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052 (1984), by failing to advise the defendant of
his or her right to testify. Pennycooke, however, points to
nothing in the record to support a conclusion that his attorney
did not advise him of his right to testify. Instead he merely
requests that if we reject his contention that the court should
have advised him of his right to testify that we "remand this
matter to the district court for an evidentiary hearing as to
whether or not [his] right to testify was impermissibly waived by
counsel." Brief at 14. We, however, will not remand the matter
as Pennycooke requests, for if he wishes to charge his counsel
with being ineffective, he must raise the issue in a proceeding
under 28 U.S.C. § 2255. See United States v. Sandini, 888 F.2d
300, 311-12 (3d Cir. 1989), cert. denied, 494 U.S. 1089, 110
S. Ct. 1831 (1990).
III. CONCLUSION
For the foregoing reasons, we will affirm the judgment
of conviction and sentence entered on October 20, 1994.
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