U.S. v. Ives

• Decision Date: 09 August 1974
• Docket Number: No. 73-1726,73-1726
• Citation: 504 F.2d 935
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Louis Joseph Marion Marvin IVES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 935

504 F.2d 935

UNITED STATES of America, Plaintiff-Appellee, v. Louis Joseph Marion Marvin IVES, Defendant-Appellant.

No. 73-1726.

United States Court of Appeals, Ninth Circuit.

Aug. 9, 1974.

Mark E. Vovos (argued), of Bovey & Vovos, Spokane, Wash., Kelly Hancock (argued), Omak, Wash., for defendant-appellant.

Robert S. Linnell, Asst. U.S. Atty. (argued), Spokane, Wash., for plaintiff-appellee.

OPINION

Before DUNIWAY and WALLACE, Circuit Judges, and WOLLENBERG, ^* District Judge.

WALLACE, Circuit Judge:

Ives was convicted of murder on an Indian Reservation, in violation of 18 U.S.C. 1111 and 1153. He appeals, claiming (1) that his constitutional and statutory rights were infringed when the district judge refused to allow him to testify, (2) that he was incompetent to stand trial and the judge erred in refusing to hear psychiatric evidence on the issue, (3) that the court lacked jurisdiction and (4) that various errors were committed pertaining to psychiatric testimony, jury instructions and jury separation. We affirm.

I

This case illustrates the recent problem of the obstreperous defendant in our criminal courts. Ives' first ill-fated trial ended in a mistrial because of his continuous disruption. The second trial judge was not oblivious to Ives' track record, having read the transcript of the first trial and personally discussed Ives' disruptions with the judge who presided at the first trial. Forewarned, and in accordance with the constitutionally permissible methods of dealing with a contumacious defendant as enunciated in Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), he wisely took appropriate steps ¹ to insure Ives' failure in any attempt to cause a second mistrial. ² As one such precaution he ordered the installation of special sound equipment in the courtroom and in a cell beneath it, so that in the event that it became necessary to remove Ives from the courtroom, he could hear the proceedings. Likewise, he ordered the installation of special telephones, with lights rather than bells, in the cell and on defense's counsel table so that Ives could communicate with his attorneys during the course of the proceedings. ³ Not unexpectedly, the judge was constrained to remove Ives on several occasions to the special cell beneath the courtroom.

The trial judge unquestionably had the power and authority to remove Ives from the courtroom because of his disruptive conduct. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). This case, however, adds a new dimension to the usual disruptive defendant cases and raises a very serious constitutional question. Although Ives insisted that he be allowed to testify in his own behalf, the trial judge, after many instances of disruption in the courtroom, determined that Ives had lost that privilege because of his failure to conduct himself in a manner necessary to maintain the decorum of the court. Thus, Ives was not only excluded from the courtroom, but also was not allowed to return to testify in his defense against the murder charge brought against him.

Our judicial system has not always afforded the accused the opportunity of testifying in his own behalf. ⁴ Between the sixteenth and nineteenth centuries, the common law did not allow him to do so. Nor does the Constitution grant a specific right to testify. ⁵ Thus, for a period of time in our history, the privilege to testify was not recognized either under common law or by specific constitutional mandate. The privilege was first recognized in the federal courts in 1878 when Congress specifically directed that defendants shall be deemed competent witnesses. ⁶

If, in addition to this statutory privilege to testify, there is also a constitutional guarantee, that guarantee must be rooted in the due process requirement of the Fifth Amendment. ⁷ If so, it has lain dormant since the adoption of the Constitution. Because of the statute enacted in 1878, making a defendant a competent witness in a federal case, we have not bee required to determine whether the Constitution separately guarantees an accused the privilege of testifying.

Although not identifying it as a constitutional guarantee, most courts in recent years have recognized that a defendant should be allowed to testify in his defense. The courts have not been precise in identifying the source or nature of this interest. Some have referred to it as a privilege ⁸ while others have termed it a right. ⁹ We have recently held that the Fifth Amendment protection against self-incrimination in the filing of income tax information is a privilege. Garner v. United States, 501 F.2d 228 (9th Cir. 1974). Because it is a privilege and not a right it must be claimed or it is waived. Id. at 240. It is unnecessary for us to decide whether it is a privilege or a right; for convenience, we refer to it as a privilege. It is unnecessary for us to delineate further than to hold that if the Fifth Amendment does guarantee a defendant the opportunity to testify, he must claim it by attempting to take the stand or it is waived. As the Supreme Court has recently stated: 'Every criminal defendant is privileged to testify in his own defense, or to refuse to do so.' Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 645, 28 L.Ed.2d 1 (1971). ¹⁰ The privilege of a criminal defendant to testify is the other side of the coin on which appears the privilege against self-incrimination. In the context of a criminal trial, the latter privilege is 'claimed' by the defendant's doing nothing; in fact it need not be 'claimed' at all. The defendant simply does not testify. If he does not elect to testify, he must be deemed to have waived his privilege to do so. It would make no sense and, in the light of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), it would introduce possible error into the trial to require that the court or the prosecutor ask the defendant whether he wishes to testify. That is the reason why the defendant must claim his privilege to testify or be deemed to have waived it.

Also it is unnecessary for us to determine whether the Fifth Amendment requires that a defendant be allowed to testify. We need go no further than to hold that even if there is such a constitutional requirement, that privilege must be claimed and may be waived. The statute recognizing criminal defendants as competent witnesses creates a privilege to testify that may also be waived. However, in this case we hold that the conduct of Ives was sufficient to waive his opportunity to testify, whether it be rooted in the Constitution or in a statute. In doing so, we are aware that a privilege guaranteed to an individual by the Constitution has a higher status than a similar privilege granted by the Congress-- one that Congress can take away as well as grant. In Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the Court held that where a defendant's constitutional right is infringed during a trial, the usual harmless error rules do no apply. The error must be found harmless beyond a reasonable doubt; otherwise a reversal is required. Moreover, the Court pointed out that it was held 'that there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.' Id. at 23, 87 S.Ct. at 828.

Similarly, the Court has consistently taken the position that a waiver of a constitutional right or privilege will be measured against a higher standard than a waiver of a right or privilege not guaranteed by the Constitution. As the Court stated in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938): 'It has been pointed out that 'courts indulge every reasonable presumption against waiver' of fundamental constitutional rights and that we 'do not presume acquiescence in the loss of fundamental rights."

The denial of a criminal defendant's privilege to testify in his own behalf was the basis for reversing a conviction in United States v. Bentvena, 319 F.2d 916 (2d Cir.), cert. denied, 375 U.S. 940, 84 S.Ct. 345, 346, 353, 354, 355, 360, 11 L.Ed.2d 271, 272 (1963).) ¹¹ As in the present case, the first jury trial resulted in a mistrial ¹² and the second trial judge was aware of the defendant's earlier conduct. Not surprisingly, the second trial was also permeated by the defendant's loud outbursts. One of the defendants hurled a chair, narrowly missing his target (one of the United States attorneys), which shattered on impact with the jury box. Another defendant ascended into the jury box and proceeded to shove several of the jurors while shouting vilifications at them, the judge and other defendants. ¹³

One of the Bentvena defendants, Salvatore Panico, requested that he be allowed to testify in his own behalf. The trial judge stated that he had a right to testify and asked him if he would behave himself on the stand. After a brief discussion with the defendant, the court, during a recess, overruled an objection by another defendant that Panico not be allowed to testify. Subsequently, however, the trial judge changed his mind and refused to allow Panico to testify. ¹⁴ The Second Circuit reversed Panico's conviction because of this denial, but stated:

The question appears to be one of first impression, and while we do not wish to indicate that the privilege may never be waived by conduct, the facts in the present case do not warrant that conclusion.

319 F.2d at 944.

We are impressed with the reverence shown by our brothers of the Second Circuit for the sanctity of the privilege of the accused to testify. We have stated this privilege is of 'inestimable value.' Yates v. United States, 227 F.2d 844, 846 (9th Cir. 1955), aff'd in part, rev'd in part, 355 U.S. 66, 78 S.Ct. 128, 2 L.Ed.2d 95 (1957). There is no doubt that its protection is fundamental to our judicial process.

The Bentvena court referred to the testimonial privilege and implied...