U.S. v. Waller, 79-1211

• Decision Date: 05 October 1979
• Docket Number: No. 79-1211,79-1211
• Citation: 607 F.2d 49
• Parties: UNITED STATES of America v. Herman WALLER, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 49

607 F.2d 49

UNITED STATES of America v. Herman WALLER, Appellant.

No. 79-1211.

United States Court of Appeals Third Circuit.

Argued Sept. 7, 1979.

Decided Oct. 5, 1979.

Russell J. Ober, Jr., Maureen I. Dunn Harvey (argued), Wallace, Chapas & Ober, Pittsburgh, Pa., for appellant.

Robert J. Cindrich, U. S. Atty., Faye M. Gardner, Asst. U. S. Atty., Edward J. Schwabenland (argued), Asst. U. S. Atty., Pittsburgh, Pa., for appellee.

Before SEITZ, Chief Judge, and GIBBONS and HIGGINBOTHAM, Circuit Judges.

PER CURIAM.

The appellant, Herman Waller, was charged with possessing stolen mail, forging a government check and uttering the forged check in violation of 18 U.S.C §§ 1708, 495 and 2. He was found guilty by a jury on all three counts. He argues that the trial judge's question in the presence of the jury on whether the appellant was going to testify constituted plain error. He also challenges the trial judge's charge on aiding and abetting. We disagree with the appellant's contentions and will affirm.

I.

In the presence of the jury, the trial judge asked whether defense counsel was going to put the defendant on the stand:

Mr. Ober: Your Honor, we would like to recall Agent Legan for just a couple of questions, if we may.

The Court: All right. May I ask this question: Are you going to put your Defendant on the stand?

Mr. Ober: Pardon me, your Honor?

The Court: Are you going to put Mr. Waller on the stand?

Mr. Ober: I I really don't know, your Honor. Excuse me. I have to I thought that after today's session there is a legal matter I want to bring to your attention, and I was going to make that decision after we have had a chance to do that. But we do have two other witnesses: this Agent and another Government employee.

The Court: All right. Very good.

Transcript at 325.

The appellant argues that this constituted plain error. No objection was made by defense counsel to the court's question. Rule 52(b) of the Federal Rules of Criminal Procedure provides that plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court. "This Court's power under Rule 52(b) is discretionary and may be exercised only to prevent a manifest miscarriage of justice." United States v. Grasso, 437 F.2d 317, 319 (3d Cir. 1970), Cert. denied, 403 U.S. 920, 91 S.Ct. 2236, 29 L.Ed.2d 698 (1971).

The test for determining whether a remark constitutes an improper comment on an accused's failure to take the stand in his own behalf is "whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." United States v. Chaney, 446 F.2d 571, 576 (3d Cir.), Cert. denied, 404 U.S. 993, 92 S.Ct. 543, 30 L.Ed.2d 546 (1971); United States v. Dansker, 537 F.2d 40, 63 (3d Cir. 1976), Cert. denied,429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977).

The appellant argues that the trial judge's question "can only be construed as comments on his failure to testify" and "only impressed upon the jury that the decision whether to testify was significant to the trial judge." Brief for Appellant at 12. We disagree in view of the statements by the appellant's attorneys ¹ who themselves "impressed upon the jury" his failure to testify. In her opening statement to the jury, appellant's counsel stated:

". . . you will not hear from the Defendant until after the Government has presented all of its evidence; and You will hear from the Defendant.

As the Judge instructed you, the Defense need not put any evidence on at all. The reason for this is because Mr. Herman Waller, as is every defendant, is presumed innocent until proven guilty. Therefore, we need not introduce one, single witness in this case. But because we are interested in the truth, because we want you to understand all the facts in this case, we are going to introduce several witnesses. And you will have the opportunity at the close of the Government's case to see these witnesses which the Defense is going to put on."

Transcript at 3. (emphasis supplied). Defense counsel's closing statement to the jury again called attention to the appellant's failure to testify:

"Now, the attorney for the Government has suggested to you that reasonable doubt should be an honest doubt. And that is a true statement, of course, and I will suggest to you that that doubt arise fairly from the evidence. Now, you may wonder why I did not choose to have Herman Waller testify. There's a very good reason for that, and let me tell you.

You, ladies and gentlemen, have been sitting here since Monday. You've heard on three separate occasions that the Defendant, Herman Waller, gave the same exact statement to three separate police officers. If you heard it again a fourth time, it really wouldn't make any difference Because I honestly believe and I think my experience in trying cases of this sort bears me out that if you are to find a reasonable doubt in a case such as this, ladies and gentlemen, it must fairly arise from the evidence, the Government evidence or the evidence given by reasonably impartial third-party witnesses called on behalf of the Defendant."

Transcript of the Opening and Closing Remarks of Counsel for the Defendant at 9-10 (emphasis supplied). The trial judge's inquiry, under these circumstances and in the context of the entire trial, cannot be taken as a comment on Waller's failure to testify.

Certainly we disapprove of any practice of inquiring from counsel in the presence of the jury whether a defendant is going to take the stand. In an unrushed fashion, a trial judge could easily make such an inquiry at side-bar. However, in reading the record, it appears that this was a spontaneous action in the trial judge's efforts to schedule the balance of the trial and was not "manifestly intended or . . . of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." United States v. Chaney, 446 F.2d at 576. If counsel had objected and asked for a curative instruction, we are confident that such an instruction would have eliminated any possibly adverse inferences. On the whole, there was no suggestion that a negative response to the judge's inquiry...