United States v. Poe

• Decision Date: 02 June 1965
• Docket Number: No. 18964.,18964.
• Citation: 352 F.2d 639
• Parties: UNITED STATES of America, Appellant, v. Samuel N. POE, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

352 F.2d 639 (1965)

UNITED STATES of America, Appellant, v. Samuel N. POE, Appellee.

No. 18964.

United States Court of Appeals District of Columbia Circuit.

Argued December 8, 1964.

Decided June 2, 1965.

Mr. John A. Terry, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker and Oscar Altshuler, Asst. U. S. Attys., were on the brief, for appellant.

Mr. John Bodner, Jr., Washington, D. C., for appellee.

Before BAZELON, Chief Judge, EDGERTON, Senior Circuit Judge, and WASHINGTON, Circuit Judge.

EDGERTON, Senior Circuit Judge.

A jury convicted Poe, a 22-year-old indigent, of housebreaking and larceny. On August 27, 1963, the trial judge¹ sentenced him to imprisonment for two to six years. One year later the judge granted, after a hearing, a motion of new counsel to set aside the conviction and sentence under 28 U.S.C. § 2255. Poe v. United States, 233 F.Supp. 173 (1964). The government appeals.

The judge found the following undisputed facts. Poe told his court-appointed counsel before trial that he wished to take the stand and counsel agreed. No other defense was available. Counsel "understandably was unprepared for the situation that developed suddenly at the end of the Government's case" when the judge ruled that statements imputed to Poe were not admissible in evidence. Counsel was uncertain whether the government could use the statements for impeachment purposes if Poe testified. Counsel asked the judge to rule on this question. The judge refused. It was late in the day and counsel, "believing that the court wanted to conclude the case and submit it to the jury that afternoon,² felt impelled to make a quick decision on whether to put Poe on the stand." 233 F.Supp. at 177. He strongly urged Poe not to take the stand, on the ground that the government might be able to use the inadmissible statements for impeachment purposes. Because of counsel's urging, Poe "reluctantly" did not take the stand. 233 F.Supp. at 175. "The importance the jury attaches to the accused's not taking the stand and denying his guilt cannot be overemphasized. * * * In this case, the necessity for the petitioner's testifying was even greater than usual. All morning and afternoon of the day of the trial the Government called witnesses and presented evidence. When the petitioner's turn came, no defense was offered; not even the petitioner took the stand to deny his guilt. In view of this situation, with all the evidence on one side and none on the other, it was not surprising that the jury concluded the petitioner was guilty." 233 F.Supp. at 177.

We quote from the judge's Conclusions of Law: "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. * * * The applicable law would have permitted Poe 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." 233 F.Supp. at 176. (Emphasis added.) Because he "was not properly and fully informed of the state of the law", he could make "no meaningful decision" on whether to testify. "Unquestionably, if he had been informed of the applicable law, he would have testified in his own behalf. The failure to inform petitioner of the applicable law deprived him of a fair trial." 233 F. Supp. at 178.³

As the judge said, "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.'" 233 F.Supp. at 176. Two months after the decision now here on appeal, we applied this rule to reverse two convictions and said: "To permit the Government to introduce illegally obtained statements which bear directly on a defendant's guilt or innocence in the name of `impeachment' would seriously jeopardize the important substantive policies and functions underlying the established exclusionary rules." Johnson v. United States, 120 U.S.App.D.C. 69, 72, 344 F.2d 163, 166 (1964).

The trial judge found that appellant was deprived of a fair trial because he was misinformed as to the consequences of taking the stand to deny the charges against him. It is highly unusual and significant when a trial judge concludes that a defendant was unfairly convicted before him by reason of the action or inaction of the judge or counsel, or both. We should not disturb this conclusion unless it is clearly wrong. We cannot say that it is. Neither the facts we have summarized nor any called to our attention disprove the trial judge's scrupulous conclusion.

Our opinion is no broader than our decision. We deal solely with the extraordinary situation in which the trial judge himself has concluded that a defendant did not have a fair trial. We do not suggest that Poe was deprived of effective representation. The trial judge's conclusion that Poe did not have a fair trial is not necessarily and clearly wrong because the judge weighed, as...