Ortega v. O'Leary

• Decision Date: 04 April 1988
• Docket Number: No. 86-2867,86-2867
• Citation: 843 F.2d 258
• Parties: Daniel ORTEGA, Petitioner-Appellant, v. Michael O'LEARY, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 258

843 F.2d 258

Daniel ORTEGA, Petitioner-Appellant, v. Michael O'LEARY, Warden, Respondent-Appellee.

No. 86-2867.

United States Court of Appeals, Seventh Circuit.

Argued March 1, 1988.

Decided March 21, 1988.

As Amended April 4, 1988.

Howard B. Eisenberg, Southern Illinois Univ., School of Law, Carbondale, Ill., for petitioner-appellant.

William P. Pistoorius, Asst. Atty. Gen., Chicago, Ill., for respondent-appellee.

Before CUMMINGS, WOOD and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

On November 15, 1982, Daniel Ortega was convicted by an Illinois state circuit court on two counts of indecent liberties with a child, and was sentenced to concurring terms of nine years imprisonment. On appeal, one of the counts was vacated, but the court affirmed Ortega's conviction in all respects. Ortega's subsequent appeals to the Illinois Supreme Court and the United States Supreme Court were unsuccessful. People v. Ortega, 125 Ill.App.3d 1181, 89 Ill.Dec. 820, 481 N.E.2d 371 (5th Dist.1984), cert. denied, 469 U.S. 1220, 105 S.Ct. 1206, 84 L.Ed.2d 348 (1985). A writ of habeas corpus under 28 U.S.C. Sec. 2254 was filed on October 22, 1985. After a limited hearing by a magistrate, the writ was denied on September 30, 1986. This appeal followed. We affirm.

I.

Ortega was charged with having had sexual intercourse with a fourteen-year old girl on the evening of August 4, 1982. At the trial, the prosecution introduced testimony from the victim who implicated Ortega. Other witnesses corroborated the victim's testimony in many respects. The victim's sister testified that she had accompanied her sister to Ortega's trailer that night. She stated that Ortega had admitted having intercourse with the victim, and that she had found her sister, naked and intoxicated, in Ortega's bed. Two other witnesses, including a police officer, testified that Ortega had disclosed to them that he had committed the act.

The defense presented Mary Ortega, petitioner's wife, who claimed that Ortega had been with her on that particular evening. She further testified that she and Ortega had sexual relations infrequently since the medication Ortega takes to control his epilepsy makes it difficult for him to achieve an erection. Ortega's personal physician verified that the medication might cause impotency, although Ortega had never complained to him about this problem. Another witness for Ortega, Kenneth Kohrs, said that the victim had told him and Ortega that she was seventeen years old.

After presenting these witnesses, the defense attorney, public defender Richard Brown, rested and the trial adjourned for lunch. Upon reconvening, the trial judge informed the jury that the closing arguments would soon begin. However, when prosecuting counsel Schuwerk began to speak, the defendant interrupted the proceedings, indicating his desire to testify on his own behalf. ¹

During the prosecutor's closing remarks, Ortega interrupted for a second time. After excusing the jury, the judge directed Ortega to remain silent for the remainder of the trial. Ortega insisted that Mr. Brown had told him that the defense would continue after lunch. When the judge asked Brown if he had considered calling Ortega to the stand, the attorney stated that a joint decision had been made that Ortega would not testify. Ortega protested, stating that Brown was lying. The court denied Ortega's repeated requests to testify, and the closing arguments proceeded.

On appeal to the Illinois Appellate Court, Ortega argued that the court's refusal to let him testify was an abuse of discretion. The appellate court rejected this contention and affirmed his conviction, although it dismissed one count on other grounds. The Illinois Supreme Court denied Ortega leave to appeal and the Supreme Court of the United States denied his petition for a writ of certiorari. Having exhausted his state court remedies, Ortega filed a writ of habeas corpus, claiming that the court's denial of his testimony violated due process.

A magistrate conducted a limited evidentiary hearing to determine the merits of Ortega's claim. At the hearing, Ortega revealed the contents of the testimony he would have presented at his trial. He denied having had sexual intercourse with the victim, and noted that his epilepsy medication has made him impotent. He also stated that he had been with his wife on the evening of August 4, 1982. Ortega further declared that the victim's mother had attempted to extort $10,000 from him; if he refused to pay the money, she would tell the authorities that he had sex with her daughter.

Ortega admitted that his attorney had advised him not to testify since his prior murder convictions would be used to impeach him. Nevertheless, he stated that he was willing to testify since most of the people in the town, including several jurors, were already aware of his criminal past. He contends that he expressed his desire to testify to his attorney on at least three occasions.

Ortega also disclosed that Spanish is his native language and that he "thinks" in Spanish. Ortega claimed that he did not understand the meaning of the term "rested" when his attorney closed the defense, and that it was his belief that the presentation of evidence would continue after lunch. Lastly, Ortega testified that the police officer must have misunderstood him if he thought that Ortega had admitted having sex with the minor.

Ortega's trial counsel, Richard Brown, also testified at the hearing although his testimony was limited by Ortega's refusal to waive the attorney-client privilege. Brown hinted that he and Ortega had jointly decided that Ortega would not take the stand. Brown also stated that in his years of practice as a public defender, he had never refused a defendant who wished to exercise the right to testify.

The magistrate concluded that the testimony Ortega would have offered at trial was merely repetitive of other evidence which the defense had presented. Consequently, the trial court's denial of Ortega's request to testify did not violate due process.

II.

A. Right to Testify

Under common law, a defendant was deemed incompetent to testify. Even after this limitation was abolished by statute in most jurisdictions, the ability to testify was not afforded full stature as a constitutional right. See, e.g., Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 645, 28 L.Ed.2d 1 (1971) (right to testify termed a privilege). However, the right to testify on one's own behalf is now a recognized fundamental right. United States v. Curtis, 742 F.2d 1070, 1076 (7th Cir.1984), cert. denied, 475 U.S. 1064, 106 S.Ct. 1374, 89 L.Ed.2d 600. See Faretta v. California, 422 U.S. 806, 819-20 n. 15, 95 S.Ct. 2525, 2533 n. 15, 45 L.Ed.2d 562 (1975); Alicea v. Gagnon, 675 F.2d 913, 923 (7th Cir.1982). Indeed, it is clear that a defendant's right to testify is protected under the Fifth, Sixth, and Fourteenth Amendments. Rock v. Arkansas, --- U.S. ----, 107 S.Ct. 2704, 2709-10, 97 L.Ed.2d 37 (1987).

Although the defendant's right to testify is fundamental, there are limitations on its exercise, such as the accommodation of legitimate interests in the trial process. Rock, 107 S.Ct. at 2711. For example, there is no constitutional right to commit perjury. Nix v. Whiteside, 475 U.S. 157, 173, 106 S.Ct. 988, 998, 89 L.Ed.2d 123 (1986); Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 645, 28 L.Ed.2d 1 (1971); Curtis, 742 F.2d at 1076, cert. denied, 475 U.S. 1064, 106 S.Ct. 1374, 89 L.Ed.2d 600 (1986). The issue thus becomes whether the trial court erred in denying Ortega's request to testify, and if so, whether this error was harmless beyond a reasonable doubt.

The respondent maintains that no error occurred since Ortega had already waived his right to testify. The respondent concedes that the right to testify on one's own behalf is a personal right which cannot be waived by the defendant's counsel for tactical reasons without the defendant's consent. Curtis, 742 F.2d at 1076. If a defendant insists on testifying, no matter how unwise such a decision, the attorney must comply with the request. Id. The respondent argues that Ortega had agreed not to take the stand as part of his trial strategy with his attorney, and that his assertion of his right to testify was made too late.

The record in this case is devoid of any colloquy between the judge and Ortega on the nature of the waiver, if any. ² It is true that courts have no affirmative duty to determine whether a defendant's silence is the result of a knowing and voluntary decision not to testify. See United States v. Systems Architects, Inc., 757 F.2d 373, 375 (1st Cir.), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 115 (1985). Nonetheless, trial courts must take steps to insure that important constitutional rights have been voluntarily and intelligently waived. Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468-69, 25 L.Ed.2d 747 (1970).

The judge's unwillingness to allow Ortega's testimony is perhaps due to Ortega's prior conduct during the trial. The record reveals disruptive behavior on Ortega's behalf as well as hostility between Ortega and the prosecutor, a situation which made the proceedings more difficult. We are sympathetic to the problems which contumacious parties can create in a courtroom. See, e.g., Illinois v. Allen, 397 U.S. 337, 341, 90 S.Ct. 1057, 1059-60, 25 L.Ed.2d 353 (1970). Nonetheless, courts should carefully consider a defendant's request to exercise his or her constitutional rights, particularly the right to testify. United States v. Walker, 772 F.2d 1172, 1179 (5th Cir.1985) (the defendant's testimony is of prime importance in a criminal trial). A contentious defendant has no fewer rights than a sympathetic one. Cf. United States v. Chaussee, 536 F.2d 637, 641 (7th Cir.1976).

In this case, the magistrate made no finding as to whether Ortega had, in fact, waived his right to testify. United States v. Johnson, 820...