U.S. v. Scott

• Citation: 909 F.2d 488
• Decision Date: 21 August 1990
• Docket Number: No. 89-8520,89-8520
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alvin Gregory SCOTT, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 488

909 F.2d 488

UNITED STATES of America, Plaintiff-Appellee, v. Alvin Gregory SCOTT, Defendant-Appellant.

No. 89-8520.

United States Court of Appeals, Eleventh Circuit.

Aug. 21, 1990.

John W. Stokes, Lawrenceville, Ga., for defendant-appellant.

Robert L. Barr, U.S. Atty., N.D. Ga., F. Gentry Shelnutt, Jr., Candiss L. Howard, Asst. U.S. Attys., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before FAY and JOHNSON, Circuit Judges, and GIBSON ^*, Senior Circuit Judge.

FAY, Circuit Judge:

Defendant-appellant Scott appeals his conviction for possession of a firearm after having been convicted of a felony, in violation of Title 18 U.S.C. sections 922(g) and 924(e). As grounds for reversal, Scott asserts that the district court deprived him of either his right to counsel or his right to testify by forcing him to choose between

either proceeding with counsel and not testifying or proceeding without counsel. After review of the record, we find that the trial judge committed error. Accordingly, we VACATE and REMAND for a new trial.

BACKGROUND

Defendant-appellant Scott was charged by a grand jury indictment with possessing a firearm after having been convicted of a felony involving violence, in violation of Title 18 U.S.C. sections 922(g) and 924(e). Scott pleaded not guilty to the charges, and the court appointed the Federal Defender Program, Inc. to represent Scott. On March 3, 1989, trial commenced; both parties presented opening statements and the government presented its entire case.

On March 6, the next day of trial, Scott's attorney moved to withdraw from the case for reasons which she believed could not be disclosed to the court. The court discussed the situation with Scott, his attorney, and the prosecutor in an effort to determine an appropriate course of action. Eventually, the district judge presented Scott with a choice: either to proceed with counsel with the caveat that Scott could be kept off the witness stand, if his attorney so desired, or to proceed pro se. After conferring with his attorney and being warned of the consequences of proceeding pro se, Scott decided to conduct his defense without an attorney. Scott was convicted and sentenced to fifteen years.

DISCUSSION

We are confronted in this case with the dilemma that a trial judge faces when counsel for the defendant believes that she has an ethical obligation to the court to withdraw from the case and perceives a duty to her client to ensconce the reason for withdrawal. At issue in this case is the propriety of the trial judge's solution to this ethical predicament: to give Scott a choice of either proceeding pro se or proceeding with counsel, who could prevent Scott's testifying. In deciding this issue, we must examine the scope of a defendant's right to counsel, as well as the extent of a defendant's right to testify, and determine whether the trial judge abridged either or both.

The right of a criminal defendant to be represented by counsel is firmly rooted in our system of justice. It is a right guaranteed by the Sixth Amendment to the Constitution, which states, "In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. "The Sixth Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel." Johnson v. Zerbst, 304 U.S. 458, 463, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461 (1938) (footnote omitted). As the Supreme Court has stated,

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.

Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 63-64, 77 L.Ed. 158 (1932). This is not to say that a criminal defendant is barred from waiving his right to counsel. Just as an accused is entitled to the assistance of counsel, so also is a criminal defendant guaranteed the right to self-representation. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). "The right to defend is personal. The defendant Unlike a criminal defendant's right to assistance of counsel, an accused's right to testify is not explicitly provided for in the Constitution. In fact, under common law, a criminal defendant was deemed incompetent to testify because of his interest in the outcome of the litigation. See Rock v. Arkansas, 483 U.S. 44, 49, 107 S.Ct. 2704, 2708, 97 L.Ed.2d 37 (1987) (citing 2 J. Wigmore, Evidence Secs. 576, 579 (J. Chadbourn rev.1979); Ortega v. O'Leary, 843 F.2d 258, 260 (7th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 110, 102 L.Ed.2d 85 (1988). Eventually, this rule of incompetency was abrogated by statute, see Act of Mar. 16, 1878, ch. 37, 20 Stat. 30 (codified as amended at 18 U.S.C. Sec. 3481 (1988)), and the Supreme Court recognized that "[e]very criminal defendant is privileged to testify in his own defense." Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 645, 28 L.Ed.2d 1 (1971). Over time, this "privilege" apparently has developed into a Constitutional right protected by the Fifth, Sixth, and Fourteenth Amendments. In Rock v. Arkansas, the Supreme Court, in addressing a state's restriction on the use of posthypnotic testimony, stated, "The right to testify on one's own behalf at a criminal trial has sources in several provisions of the Constitution. It is one of the rights that 'are essential to due process of law in a fair adversary process.' " 483 U.S. at 51, 107 S.Ct. at 2709 (quoting Faretta, 422 U.S. at 819 n. 15, 95 S.Ct. at 2533 n. 15)). The Court then cited the Fourteenth Amendment to the Constitution, averring that "the Fourteenth Amendment's guarantee that no one shall be deprived of liberty without due process of law include[s] a right to be heard and offer testimony." Id. Additionally, the Court found that the Compulsory Process Clause, which grants a defendant the right to call witnesses in his favor, gives rise to an accused's right to testify. "In fact, the most important witness for the defense in many criminal cases is the defendant himself. There is no justification ... for a rule that denies an accused the opportunity to offer his own testimony." Id., 483 U.S. at 52, 107 S.Ct. at 2709. Finally, the Court, relying on Harris v. New York, 401 U.S. at 225, 91 S.Ct. at 645, in which the Court stated that "[e]very criminal defendant is privileged to testify in his own defense or refuse to do so," found that the right to testify is a necessary corollary to the Fifth Amendment's guarantee against compelled testimony.

                and not his lawyer or the State, will bear the personal consequences of a conviction.  It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage."    Id. at 834, 95 S.Ct. at 2541.    It is imperative, however, that before allowing an accused to exercise his right to self-representation, the court fulfill its "serious and weighty responsibility" of determining whether the accused has knowingly and intelligently waived the right to counsel.  Johnson, 304 U.S. at 465, 58 S.Ct. at 1023;  Faretta, 422 U.S. at 835, 95 S.Ct. at 2541.    Such a determination is case specific, depending upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused, and must be made a part of the record.  Faretta, 422 U.S. at 835, 95 S.Ct. at 2541, Johnson, 304 U.S. at 464, 58 S.Ct. at 1023
                

It is clear then that a defendant's right to testify "is now a recognized fundamental right." Ortega v. O'Leary, 843 F.2d at 261. See Faretta, 422 U.S. at 819 n. 15, 95 S.Ct. at 2533 n. 15. Accordingly, the right to testify is personal and cannot be waived by counsel. United States v. Martinez, 883 F.2d 750, 756 (9th Cir.1989), petition for cert. filed, No. 89-7539 (May 17, 1990); United States v. Long, 857 F.2d 436, 447 n. 9 (8th Cir.1988); Ortega, 843 F.2d at 261; United States v. Curtis, 742 F.2d 1070, 1076 (7th Cir.1984) (per curiam), cert. denied, 475 U.S. 1064, 106 S.Ct. 1374, 89 L.Ed.2d 600 (1986); see also Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983) ("It is ... recognized that 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."); Wainwright v. Sykes, 433 U.S. 72, 93 n. 1 The right to testify, however, is not without limitations. A defendant who testifies must comply with restrictions which are not "arbitrary or disproportionate to the purposes they are designed to serve." Rock v. Arkansas, 483 U.S. at 56, 107 S.Ct. at 2711; see also Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973) ("[T]he accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence."). Moreover, the right to testify "does not extend to testifying falsely." Nix v....