                                                                                                                           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Precedential or Non-Precedential: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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            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




                                    2
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


                                4
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


                                 5
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.

                                7
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.


                                  8
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




                                9
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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