65 F.3d 9 (3rd Cir. 1995), 94-3605, United States v. Pennycooke

Docket Nº:94-3605.
Citation:65 F.3d 9
Party Name:UNITED STATES of America, v. Courtney Dave PENNYCOOKE Courtney Pennycooke, Appellant.
Case Date:August 30, 1995
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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65 F.3d 9 (3rd Cir. 1995)



Courtney Dave PENNYCOOKE Courtney Pennycooke, Appellant.

No. 94-3605.

United States Court of Appeals, Third Circuit

August 30, 1995

Aug. 21, 1995.

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Bonnie R. Schlueter, Assistant U.S. Attorney, Frederick W. Thieman, United States Attorney, Pittsburgh, PA, for appellee.

Carl H. Lida, Law Office of Carl H. Lida, P.A., Plantation, FL, for appellant.



GREENBERG, Circuit Judge.


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 district court had jurisdiction under 18 U.S.C. Sec. 3231 and we have jurisdiction pursuant to 28 U.S.C. Sec. 1291.


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, 97 L.Ed.2d 37 (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, 77 L.Ed.2d 987 (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

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an appeal"); United States v. Joelson, 7 F.3d 174, 177 (9th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 620, 126 L.Ed.2d 584 (1993); United States v. Teague, 953 F.2d 1525, 1531-33 (11th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 127, 121 L.Ed.2d 82 (1992); Ortega v. O'Leary, 843 F.2d 258, 261 (7th Cir.), cert. denied, 488 U.S. 841, 109 S.Ct. 110, 102 L.Ed.2d 85 (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, 45 L.Ed.2d 562 (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...

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