Siciliano v. Vose

• Decision Date: 16 September 1987
• Docket Number: No. 87-1085,87-1085
• Citation: 834 F.2d 29
• Parties: Thomas F. SICILIANO, Petitioner, Appellant, v. George VOSE, Superintendent, MCI Norfolk, Respondent, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 29

834 F.2d 29

Thomas F. SICILIANO, Petitioner, Appellant, v. George VOSE, Superintendent, MCI Norfolk, Respondent, Appellee.

No. 87-1085.

United States Court of Appeals First Circuit.

Heard Sept. 16, 1987.

Decided Dec. 3, 1987.

Harvey R. Peters, Boston, Mass., for petitioner.

Annette C. Benedetto, Asst. Atty. Gen., Crim. Bureau, with whom James M. Shannon, Atty. Gen., and Paula J. DeGiacomo, Asst. Atty. Gen., Acting Chief, Crim. Appellate Div., Boston, Mass., were on brief, for respondent.

Before BREYER and SELYA, Circuit Judges, and LAGUEUX, ^* District judge.

BREYER, Circuit Judge.

A Massachusetts state court convicted the appellant, Thomas Siciliano, of rape. After appeals and other state court proceedings, Siciliano filed a petition for habeas corpus in the federal district court, claiming that he had wanted to testify at his trial but his attorney had not allowed him to do so. In permitting conviction under these circumstances, he says, the state has deprived him of his "liberty" without "due process of law." U.S. Const. amends. V, XIV; Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 645, 28 L.Ed.2d 1 (1971) ("[e]very criminal defendant is privileged to testify in his own defense, or to refuse to do so."); United States v. Ives, 504 F.2d 935, 939 (9th Cir.1974) (defendant's right to testify is "rooted in the due process requirement of the Fifth Amendment"), vacated on other grounds, 421 U.S. 944, 95 S.Ct. 1671, 44 L.Ed.2d 97 (1975). The district court, after reviewing the record and reading Siciliano's factual affidavits, saw no need for a hearing and denied his petition. We believe that the district court was correct.

Appellant makes two claims on this appeal. First, he says that the Constitution requires a trial judge specifically to address a criminal defendant, to explain to the defendant that he has a right to testify, and to ask the defendant whether he wishes to waive that right. The appellant concedes that in his case the trial judge told the jury that the appellant "may testify" and appellant heard the judge say this. Appellant points out, however, that the judge did not address him directly, nor did the judge secure from him an explicit statement that he did not wish to testify.

We reject appellant's first claim because we do not believe that federal law contains any such procedural requirement. As the Ninth Circuit pointed out in Ives, a criminal defendant "must claim" his privilege or right to testify "by attempting to take the stand or it is waived." United States v. Ives, 504 F.2d at 939-40 and authority there cited; contra People v. Curtis, 681 P.2d 504 (Colo.1984). To require the trial court to follow a special procedure, explicitly telling defendant about, and securing an explicit waiver of, a privilege to testify (whether administered within or outside the jury's hearing), could inappropriately influence the defendant to waive his constitutional right not to testify, thus threatening the exercise of this other, converse, constitutionally explicit, and more fragile right. United States v. Ives, 504 F.2d at 939-40; see also Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) (court's instruction allowing jury to draw unfavorable inference from defendant's failure to testify wrongfully deprives defendant of his Fifth Amendment rights); United States v. Watkins, 519 F.2d 294, 297 (D.C.Cir.1975) (district court's suggestion to defendant that she could rebut prejudicial evidence if she chose to testify "placed an unacceptable burden on appellant's Fifth Amendment privilege to be silent").

Second, appellant claims that his attorney prevented him from testifying, that this action made his trial unlawful, and that the district court at least should have held a hearing to determine whether or not his attorney prevented him from testifying against his wishes. After examining the record, however, we do not believe that appellant made a factual allegation strong enough to require a hearing.

The record reveals the following:

1. Appellant heard the judge say he had a right to testify but said nothing;

2. Appellant's counsel tried, but failed, to obtain a court ruling preventing the Commonwealth from using appellant's past criminal record to impeach him, thereby leaving the Commonwealth free to introduce appellant's past record if he testified;

3. In his affidavit appellant alleges, in conclusory fashion, that his attorney refused to allow him to "testify in [his] own behalf" 4. Appellant's affidavit also says that the lawyer "advised me that the Commonwealth ... would not...