U.S. v. Martinez, 87-1094

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation883 F.2d 750
Docket NumberNo. 87-1094,87-1094
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Robert MARTINEZ, Defendant-Appellant.
Decision Date23 August 1989

Page 750

883 F.2d 750
58 USLW 2210
UNITED STATES of America, Plaintiff-Appellee,
Robert MARTINEZ, Defendant-Appellant.
No. 87-1094.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted April 4, 1988.
Decided Aug. 23, 1989.

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James D. Comack, Honolulu, Hawaii, for defendant-appellant.

John F. Peyton, Jr., Asst. U.S. Atty., Honolulu, Hawaii, for plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before WALLACE, REINHARDT and NOONAN, Circuit Judges.

NOONAN, Circuit Judge:

Robert ("Bobby") Martinez was convicted on four counts of importing heroin into the United States in violation of 21 U.S.C. Sec. 960(a)(1) and one count of possession with intent to distribute heroin in violation of 21 U.S.C. Secs. 846 and 841(b)(1)(B)(i). He appeals from denial of his motion for a new trial. The appeal involves a question of constitutional law new in this circuit: what constitutes an effective waiver by a criminal defendant of his fundamental personal right to testify in his own behalf.


The evidence presented by the government established that in September and October 1986 United States Customs in Hawaii intercepted four packages identically wrapped and addressed in the same handwriting, with the same misspelled word, mailed from Changmai, Thailand. Each package contained a carved wooden elephant. Each elephant was packed with heroin. The four packages were addressed to four different people at three different addresses. The persons at the different address did not know each other. Their only tie was a common acquaintance with Bobby Martinez. None of the addressees had ordered or expected to receive wooden elephants.

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A controlled delivery was made of the elephant addressed to Martinez's aunt Flora and her husband. After the delivery the house was kept under surveillance for nine days. At the end of this period a car was observed leaving the house. A federal agent went to the front door and saw that the elephant was missing. The agents followed the car. A wild chase through Honolulu ensued. The car was finally stopped and its driver, Martinez, was apprehended with the elephant in his possession.

At the trial Martinez was represented by Michael A. Weight, a native of Hawaii educated at the University of Rochester and at Vanderbilt University Law School, from which he graduated in 1967. From 1969 to 1974 he was Deputy Prosecuting Attorney in Honolulu and in 1976 he was Special Assistant Attorney General. He is a member of the state bar and of the bars of the district court in Hawaii, the Ninth Circuit, and the Supreme Court of the United States. Weight was privately retained by Martinez. The focus of this appeal is Weight's refusal to call Martinez as a witness in his own behalf.

After being retained, Martinez told Weight that he wished to testify in his own defense. Weight told him that under the circumstances he was not prepared to say whether that was advisable or not. In Weight's view it depended on whom the government called as prosecution witnesses.

The trial began with uncertainty continuing as to who would testify for the government. Until the government's case was in, Weight told Martinez a decision could not be made as to whether he should testify or not. At the end of the government's case Martinez told Weight "that he felt he should testify." Weight told Martinez that he was not going to call him. As Weight recalled the conversation, "He expressed to me the desire to testify; and I said no way, that I thought it was suicidal for him to testify and it would be an error in judgment; and that was it. I just made the decision he was not going to testify, I refused to call him, and that was the way it went down."

Weight did not come right out and say, "If you take the witness stand I am going to withdraw from the case." However, in Weight's view, "implicit in what I told him was that implied threat, I suppose."

The decision not to call Martinez was not based on the belief on Weight's part that Martinez would have perjured himself on the stand. Martinez wanted to offer exculpatory testimony that would have contradicted other testimony but in Weight's view did not constitute perjury. Weight did not discuss with Martinez the option of Martinez approaching the trial judge and saying that he was having a problem taking the stand because Weight was holding him back. In Weight's opinion, Weight had made "the strategic and tactical decision that he should not testify, notwithstanding his request to do so."

At no point did Martinez say he "demanded to testify" or "insisted on testifying." According to Weight, "he never said he did not care what I felt about it." As Weight summarized the matter after considerable interrogation as to what had gone on: "If we keep it pure and simple the way it went down, the way it went down was Bobby says: 'I want to testify'; I said 'No, you're not going to testify'; period, end of conversation."


After Martinez was convicted and sentenced he obtained new counsel and moved for a new trial on the ground that "he was deprived of his fundamental constitutional right to testify at the initial trial herein due to the unilateral decision of his counsel not to call him as a witness." The district judge denied the motion. Martinez appeals.



The leading case on the issue presented here is Wright v. Estelle, 572 F.2d 1071 (5th Cir.) (en banc), cert. denied 439 U.S. 1004, 99 S.Ct. 617, 58 L.Ed.2d 680 (1978). A majority of the court in that case took the position that counsel's overriding of his

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client's desire to testify could be harmless error and in fact in the case before it was harmless error. The district court in this case ruled that even if there was a right to testify that could not be waived the error was harmless. The evidence pointing to conviction, the court ruled, was overwhelming and the exculpatory evidence to which the defendant would have testified would have had little or no value: "[F]or one thing if he denies it [the evidence against him] it would be self-serving."

Because there has been such a change in fairly recent times in willingness to accept the testimony of an accused, history gives us less light than it sometimes affords. To invoke Socrates, as Judge Godbold did dissenting in Estelle, 572 F.2d at 1078, is to go back to a real person whose words, as we have them, were penned by his pious pupil, Plato. We have no first hand knowledge of what he said. To approach a little closer to our own system, English law did not give evidentiary weight to a defendant's testimony. In the famous 1535 trial of Thomas More, he, as a lawyer, was able to argue evidentiary points with the witnesses against him and to insist on the custom of being allowed to address the court after the jury had brought in a verdict, but before sentence had been pronounced. The Trial of Sir Thomas More, 1 Howell's State Trials 392 (1816). If the defendant was not a lawyer, this procedure did not offer him much of an opportunity to argue and address the court and certainly no opportunity to offer his own testimony. See, e.g., The Trial of Sir Walter Raleigh, 2 Howell's State Trials 1-60 (1816). Raleigh did wrangle, unsuccessfully, on points of law with his judges in 1603. E.g., id. at 4, 19 and 24. But the defendant was denied the opportunity to confront his principal accuser, id., and was subjected to vicious vituperation by the attorney general, Edward Coke. Id. at 7-8, 25-27. A reading of the transcript conveys the impression that the trial was a show trial in the sense of Soviet trials for treason in the 1930s and that the defendant was permitted to participate, not in recognition of his dignity, but to be made an exhibition.

If we approach a little closer to our system and look at the practice of a founding father who was also a leading lawyer, John Adams considered it a natural right for a person to have the advice of counsel in a capital case. 3 Legal Papers of John Adams 7, (L. Wroth & E. Zobel ed. 1965). But Adams in no uncertain terms set out to his clients what the clients could expect of him, if we may trust his recollection of what happened in his defense of Captain Preston in the Boston Massacre Case. Adams responded to James Forrest, otherwise known as the Irish Infant, an agent of Captain Preston, as follows:

I had no hesitation in answering that Council ought to be the very last thing that an accused Person should want in a free Country. That the Bar ought in my opinion to be independent and impartial at all Times And in every Circumstance. And that Persons whose Lives were at Stake ought to have the Council they preferred: But he must be sensible this would be as important a Cause as ever was tryed in any Court or Country of the World: and that every Lawyer must hold himself responsible not only to his Country, but to the highest and most infallible of all Trybunals for the Part he should Act. He must therefore expect from me no Art or Address, No Sophistry or Prevarication in such a Cause; nor any thing more than Fact, Evidence and Law would justify.

Id. at 6.

Judge Godbold in his dissent in Estelle asserted that we know, at least, that the founding fathers were in favor of free choice. Estelle, 572 F.2d at 1078, quoting Faretta v. California, 422 U.S. 806, 833-34, 95 S.Ct. 2525, 2540, 45 L.Ed.2d 562 (1975). In an abstract sense of course this observation is true, but if we look at Adams speaking to the Irish Infant, it is apparent that Adams thought a great many choices would be made by counsel. On probably the single most critical issue in the case, whether the soldiers who had done the shooting would be tried along with Captain Preston, their commanding officer, Adams made the decision for a joint trial, even though that choice offered

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the probability of severe prejudice to the soldiers. It was necessary for three of them, Private Matthew Kilroy...

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