Poe v. United States, Civ. A. No. 2890-63.
| Decision Date | 17 August 1964 |
| Docket Number | Civ. A. No. 2890-63. |
| Citation | 233 F. Supp. 173 |
| Parties | Samuel N. POE, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — District of Columbia |
David C. Acheson, U. S. Atty., and Oscar Altschuler, Asst. U. S. Atty., for the United States.
This matter came on for hearing on petitioner's motion pursuant to 28 U.S.C. § 2255 to set aside his conviction. The court, having considered the evidence adduced and the arguments of both sides, makes the following findings of fact and conclusions of law.
1. Petitioner, Samuel N. Poe, a 22-year-old indigent with minimal education, was charged by indictment with the commission of six felonies. The indictment charged three counts of housebreaking and three counts of grand larceny. (Tr. 3.)1
2. On August 27, 1963, petitioner was tried before judge and jury and was found guilty of three counts of housebreaking, two counts of grand larceny, and one count of petit larceny. (Tr. 190-193.) He was sentenced to serve a term of two to six years imprisonment.
3. Some time prior to the date of trial, the District Court appointed counsel from the Legal Aid Agency to represent petitioner. Before trial, trial counsel, with the assistance of petitioner, prepared a defense to the charges. That defense consisted of testimony to be given by petitioner at trial.
4. Prior to August 27, 1963, petitioner had never experienced a criminal trial before judge and jury. He was not familiar with the practice and procedure of a criminal trial.
5. Petitioner was advised, in general, of his right to take or not to take the stand in his own behalf at his own trial. Petitioner informed counsel that he wanted to take the stand. Trial counsel agreed that petitioner should take the stand and that this was the only available defense.
6. The trial opened at 10:00 A. M. on August 27, 1963. (Tr. 1.) An opening statement was made on behalf of the Government. (Tr. 14-19.) Trial counsel for petitioner reserved the opening statement, but because it later turned out that no defense was presented, no opening statement was made on behalf of petitioner. (See Tr. 19 and 160 et seq.)
7. The Government called eight witnesses—three police officers, three victims of the housebreakings and larcenies, and the night porter and the custodian of the building in question.
8. Near the end of the Government's case in chief, the District Court ruled inadmissible certain statements allegedly made by petitioner. (Tr. 152.) The Government then rested. (Tr. 160.)
9. It was about 4:00 P.M. when the Government concluded its case. (Tr. 160-162.) At this point, trial counsel for petitioner was uncertain as to whether the statements previously ruled inadmissible could be used by the Government for purposes of impeachment if petitioner took the stand to testify in his own behalf. Trial counsel sought a ruling on this point from the District Court, but the court refused the request for the ruling, stating that counsel was seeking "an advisory opinion." (Tr. 160-161.)
10. Under the applicable law in effect at that time, petitioner could have taken the stand, denied all the elements of the crimes for which he was charged, and the Government would not have been able to use, for the purpose of impeachment, the statements previously ruled inadmissible.
11. Trial counsel for petitioner felt impelled to make a quick decision on whether to call the petitioner as a defense witness. It was already late in the day. Counsel felt that the court wanted to conclude the trial and submit the case to the jury that afternoon. (See Tr. 150, 162.) Apparently the court was to be closed on the following day because of the Civil Rights March on Washington.
12. Trial counsel for petitioner immediately conferred with petitioner. He strongly urged petitioner not to take the stand on the ground that the inadmissible statements might be used by the Government for purposes of impeachment. Trial counsel did not inform petitioner that he could take the stand and deny the elements of the crimes without giving the Government the right to use for impeachment purposes the statements previously ruled inadmissible.
13. Petitioner, not knowing that he could safely take the stand and testify in his own behalf, was in no position to make an intelligent or meaningful decision on this vital question.
14. On the strong urgings of trial counsel, petitioner reluctantly did not take the stand. Trial counsel rested without calling any witnesses or introducing any evidence. In short, no defense was offered.
15. Counsel for the defendant did not request the standard jury instruction that no adverse inference is to arise from the defendant's not testifying in his own behalf. Such an instruction was not given.
1. An accused in a criminal trial in federal court has the right to testify in his own behalf. This right is guaranteed and protected by the Fifth and Sixth Amendments to the Constitution, and by federal statute, 18 U.S.C. § 3481. The Fifth Amendment, in pertinent part, provides:
"No person * * * shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law * *."
The Sixth Amendment, in pertinent part, provides:
"In all criminal prosecutions, the accused shall enjoy the right * * to have the Assistance of Counsel for his defence."
2. The right to testify is a basic right, and there is an obligation on the part of both the court and trial counsel to inform the accused of his right to testify, if he so desires. Further, it is the duty of both to assure that the exercise of this basic right by the accused is a free and meaningful decision.
3. The right to testify is personal to the accused. He must make the ultimate decision on whether or not to take the stand. In this regard it is unlike other decisions, which are often called "trial decisions," where it is counsel who decides whether to cross examine a particular witness or introduce a particular document. Here it is the accused who must decide and it is the duty of counsel to present to him the relevant information on which he may make an intelligent decision.
4. Petitioner was denied the free exercise of this right because of the advice of trial counsel and other circumstances of the trial. Being uncertain as to the law, trial counsel urged petitioner not to take the stand because of the danger that illegally obtained statements might be used by the Government to impeach his testimony.
5. The applicable law would have permitted the petitioner to take the stand and deny all of the elements of the crimes charged in the indictment without giving leave to the Government to use the inadmissible statements. In Walder v. United States, 347 U.S. 62, 65, 74 S.Ct. 354, 356, 98 L.Ed. 503 (1954), the Supreme Court said that a defendant "must be free to deny all the elements of the case against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief."
6. More recently, the Court of Appeals for this Circuit applied the Walder doctrine in Tate v. United States, 109 U.S.App.D.C. 13, 283 F.2d 377 (1960). There appellant was convicted of theft of hospital property and sought to gain a new trial on the ground that it was error for the District Court to receive in rebuttal allegedly illegally obtained statements. Appellant had taken the stand at trial and, in addition to denying all the elements of the crime, he had said he had gone to the hospital alone and that he had not known one Payne before the time he and Payne were arrested. The Government, in rebuttal, called a police officer who testified that during the allegedly illegal detention of appellant, appellant told police that he and Payne had come to the hospital together. 109 U.S. App.D.C. at 14, 283 F.2d at 378.
7. The Court of Appeals, in affirming the conviction in Tate, noted first that this was not a case in which the defendant took the stand and only denied the elements of the crime. Ibid.2 Instead, appellant gave additional testimony, and it was to impeach that additional testimony that the Government used the illegally obtained statements. But even where an accused gives testimony in addition to the denial of the alleged crime, the prosecution is not permitted to use the inadmissible statements in their entirety. As the Court of Appeals explained in Tate:
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