Boyd v. United States

Cynthia BOYD, Appellant, A. STATES, Appellee.

UNITED

No. 86-1734. Appeals.

District of Court of Columbia

Argued Nov. 1990.

Decided Jan. D.C., Rosenthal, Washington,

David appellant. Chamovitz, Atty., L. Asst. U.S.

Richard Atty., Stephens, Jay B. whom Fisher, Atty., Asst. were and John R. D.C., brief, Washington, appel- on the lee. ROGERS, Judge, McNeely other officers who had

Before and two Chief in SCHWELB, arrived assist the arrest. Judge, and Associate PRYOR, Judge. Senior McNeely subsequently searched the area footbridge. Although underneath the ROGERS, Judge: Chief debris, filled with such as small creek was Appellant Cynthia Boyd appeals from A. and caps, newspapers syringes, used bottle by jury possession of her conviction packets the creek he recovered two from heroin, (1989 Repl.), D.C.Code bridge under the which he was certain bed ground principal that she was denied packets by Boyd. tossed McNee- were constitutional We hold her ly explained that he could be certain of the testify is a packets’ identity for several reasons. that can be waived First, area, unlike the other in the refuse defendant, by judge that the trial and packets were clean and did recovered failing erred hold a deter- indicating not have a film of dirt or residue Boyd mine or had her whether waived they exposed had been the elements. testify asserted she when she that Second, packets the heroin recovered Accordingly, had wanted Third, by had not water.2 been diluted is remanded to the trial court. case size, col- packets shape were the same and away by Boyd. Finally,

or as those tossed I nothing creek else in the area resembled packets Boyd foot- threw over the arrest, evening Boyd of her On was bridge. Sergeant by McNeely in spotted the 600 Washington, of Division Boyd block Avenue a defense. After did not D.C., high McNeely jury guilty narcotics area. ob- verdict and was returned Boyd approached polled,'Boyd complaining served she was an outburst made man, spoke briefly, testify as she him that she on her own with and as had wanted she and the man to the 5100 The directed the Marshal walked block behalf.3 Avenue, thereafter, Boyd Shortly de- of Fitch entered a escort out. where and approached wooded area.1 fense counsel the bench Boyd had wanted told trial emerged Boyd approxi- from the woods her that counsel had advised but mately one minute later and returned to De- it would her best interest.” not “be the 600 block Division Avenue. McNee- explained he fense counsel advised ly approached her for her and asked identi- Boyd testify she should because McNeely Boyd’s fication. As examined impeached prior she would been permit, Boyd reached her driver’s into and possession convictions of heroin handbag and small plastic removed two The intent to possession with distribute. packets containing powder a white sub- a rea- that this was concluded stance, put attempted and them down of defense counsel. sonable tactical decision Recognizing of her the back blouse. these sentencing hearing, Boyd renewed packets heroin, At the packets to be similar to al- complaint she had not been McNeely grabbed Boyd’s forearm in an her However, told the trial. She attempt packets. to recover the lowed go up and talk wrist, tossing packets judge: “I there Boyd flicked wanted thinking I lawyer] had me footbridge myself. [My the side which over myself then all going testify for struggle A ensued with they stood. off, know, I you being a sudden he cut finally subdued and arrested cross-examination, 3. Boyd McNeely conceded that stated: 1. On happened he did not know what woods give f-up. a f-. Real real I don’t It’s appellant and the ex- and he did change money man you f-up. why I told I wanted That’s drugs. care, my get up tell side. I don’t there and today, happens it's real f- don’t care what analysis 2. A field test chemical indicated up. packets contained heroin. right.” Amendments, guarantee

don’t think that was defen judge rejected arguments Boyd’s opportunity dant “an to be heard in his counsel, seeking further defense.” clarification Id. can also year jail.4 to one Compulsory sentenced “found in the Process Amendment_ Logi Clause of the Sixth II cally right included accused’s to call testimony is and witnesses whose ‘material Boyd Appellant contends that she was right favorable to defense’ is a to testi right testify, denied her constitutional himself, fy should he decide it in his is right waive, that she did not 52, 107 favor to do so.” Id. at 2709 S.Ct. at having attorney her that told she wanted to (citation omitted). Finally, the right to tes that is She maintains this clear tify “necessary is corollary to the Fifth that, therefore, from the record and her guarantee against compelled Amendment’s conviction must reversed. be testimony,” ultimately protects the The Supreme United States Court testify defendant’s “choice of whether to has made clear that a criminal defendant 52-53, 107 own defense.” one’s Id. at S.Ct. enjoys right testify a constitutional (citation omitted). at 2709-2710 point her own behalf: “At this in the devel government, conceding The that the Su- opment adversary system, our of it cannot preme any question has of Court resolved that in a doubted a defendant criminal underpinnings the constitutional the de- right of case the the has to take witness stand right to fendant’s contends that testify and her his or own defense.” however, absolute, 44, 49-52, and that Arkansas, Rock v. 483 U.S. 107 2704, 2708-2709, permitted to (1987) defense counsel should be S.Ct. 97 L.Ed.2d 37 testify.5 (holding waive client’s In the unconstitutional a state evidentia- view, ry government’s forbidding approach rule defendants from offer the best ing counsel, hypnotically testimony). permit refreshed “to defense consistent testify obligation diligently several his or zealous- has her and ly It is carry sources. “one of that ‘are to defend the client and to out regarding goals due in a liti- process essential to of law fair client’s desires of ” adversary process.’ 51, gation, Id. at 107 S.Ct. make ultimate decision be- (citation omitted). posi- at 2709 cause counsel is in the defense best protected by process recognize therefore due tion and confront the tactical government Fifth Fourteenth involved.”6 The clauses ramifications testifying sentencing Boyd fit” After obtained new counsel dants from whenever counsel see dictum, “opinion judgment explaining and filed a motion to set aside that the is no grant affirming pursuant a new trial our D.C.Code 23-110 broader than decision” (1981). finding The trial denied court’s that the defendant’s to be the motion with failure hearing, reaffirming deprived properly him of fair trial. out a his view that defense advised Poe, addition, appellant call Poe counsel’s decision not to 352 at 640-41. Supreme made witness was a reasonable tactical decision in was decided Court light prior testify her clear the defendant’s is of record denied motion that hearing. ap without a Because did not constitutional dimensions. motion, peal of her § denial Thornberry's government Judge 6.The endorses Hall our is limited to the trial record. v. review question” involving view "the real in cases that 1321, States, (D.C.1989) United 559 A.2d 1322 prop testify waiver "involves the E.G.C., 903, (D.C. (citing re A.2d attorney authority er between the allocation 1977)). client," analyzing upon is in a and his "who strategy position government argues who is issue is con- better 5. The Poe, U.S.App.D.C. position interests United in a better to ensure best trolled States defendant,” 163, (1965), decision F.2d 639 the Poe court concludes "the because put properly the ac- whether to allocated “held” ultimate decision attorney belongs and not to the defendant.” on the to defense counsel. defendant’s cused stand Cir.) Estelle, (5th Wright Although binding Poe is on this M.A.P. v. J., (en (D.C.1971), banc) (Thornberry, concurring), Ryan, de does 285 A.2d 310 Poe nied, U.S. S.Ct. 58 L.Ed.2d control here. The Poe court’s statement “[cjounsel keep therefore remain free to defen- (D.C.1984), however, there is acknowledges, trial, contrary, requir- jury Adams v. emerging case law the to ask for a whether McCann, ing attorneys abide ex rel. testify.7 Fur- decision whether ultimate (1942); Jack- 87 L.Ed. 268 63 S.Ct. ther, argues that need government we son attorney may waive whether decide Noia, (D.C.1970), appeal, Fay v. whether to because the client’s 822, 9 L.Ed.2d 837 waived her record reveals (1963); Johnson, supra, 513 A.2d “affirmatively attempt[ing] to as- by not forego the assistance and whether to testify” until after sert her counsel, California, supra, Faretta its We must had returned verdict. jury in circumstances therefore consider what States, (1975); Fowler waived, an issue testify may be 618, (D.C.1980). The deci- 623 defendant’s impression for this court. See of first sion over each of these States, A.2d Witherspoon v. United 557 prevail, if defense counsel dis- will even J., 587, (D.C.1989)(Ferren, concur- 596-97 agrees. ring). testify can be course, dispute The decision whether to is, beyond It single important ultimate re in a crimi the accused has most factor counsel for many deci for tactical sponsibility in Supreme As the Court stated nal case. call, sions, such as which witnesses fact, Arkansas, “In supra, v. Rock arguments appeal, to raise on Jones for the defense important witness most 745, Barnes, supra, 463 103 S.Ct. v. U.S. defendant him many criminal cases 987, 3308, 77 L.Ed.2d whether 52, 107 at 2709. 483 at S.Ct. self.” U.S. govern manner to cross-examine the what context, acknowledged the Court another Janis, ment’s witnesses. See Brookhart v. persuasive most specifically that “[t]he 1245, 1249, 1, 8-9, 16 384 86 U.S. S.Ct. speak may for not be able counsel (1966) (Harlan, J., concurring) L.Ed.2d 314 might, defendant defendant (“The decision, example, or not for whether halting eloquence, speak himself.” is, specific to cross-examine witness 304, 301, U.S. Green v. United 365 alone”). think, clearly one for counsel very (1961) 653, 655, 670 5 L.Ed.2d 81 S.Ct. controls tactical decisions Counsel even allocution). opinion) (right (plurality rights. over some constitutional See Es gov testify thus “crucial decision to 3, 501, Williams, n. 425 508 96 telle v. U.S. People v. erning fate.” (1976) 3, 1691, n. 126 S.Ct. 1695 48 L.Ed.2d (Colo.1984)(en Curtis, 504, 513 681 P.2d constitutional (concerning defendant’s banc); Amsterdam, see Manual Trial prison garb to wear to decide whether (3d 390 Criminal Cases the Defense trial). there certain fundamen at But 1974). Although a defendant who ed. rights which personal tal actually testify may decrease chooses only by the defendant. See may be waived nonetheless, acquittal, chance of his or her 798, United 513 Johnson v. defen unwisdom the wisdom “[t]he Thus, (D.C.1986). the defendant must 802 his not diminish choice does dant’s plead guilty, v. Boykin decide whether Curtis, P.2d 513 supra, 681 1709, make it.” 238, Alabama, 89 S.Ct. 23 Estelle, supra, 572 F.2d (1968); Wright v. (quoting 274 Carmichael v. United L.Ed.2d 755, (dictum) testify) 103 with id. government whether to United States v. Mar 7. The cites 750, J., concurring) (nei- Cir.1989); tinez, (9th (Blackmun, United F.2d 756 S.Ct. at 3315 883 1070, (7th Curtis, 742 1075-76 v. F.2d the ABA’sview justice’s States Cir.1984), "view nor ther 1064, denied, S.Ct. U.S. 106 decisionmaking authority 475 be- ideal allocation 1374, (1986); ex United States 89 L.Ed.2d 600 necessarily attorney assumes tween client and Johnson, (3d v. F.2d 118-19 rel. Wilcox Cir.1977). 555 perform- counsel’s where constitutional status Barnes, Compare v. Jones range competence de- 'within ance is 3308, 3312, cases.’”). attorneys criminal manded of (1983) (defendant ultimate decision makes Johnson, States ex rel. v. (Godbold, J., Wilcox dissenting)). The de- at 1079 (3d Cir.); fendant’s 555 F.2d at 118-19 Dougherty, v. U.S.App.D.C. public tell side” in a forum desire to “his Neuman, (1972); State v. him. may overriding importance be of (W.Va.1988); Curtis, su 371 S.E.2d Indeed, in the defen- some circumstances State, pra v. (Colorado); Culberson dant, risks, regard (Miss.1982); v. Ro State stand, So.2d speak wish to from the over the sillo, (Minn.1979); larger N.W.2d jury, head of audi- State, Ingle v. 92 Nev. P.2d attorney muzzle ence. It is not for his Noble, (1976); State v. 109 Ariz. him. State, Hughes (1973); P.2d 460 513 P.2d Estelle, Wright 572 F.2d at 1080 1973); (Alaska also Jones (Godbold, J., dissenting). Barnes, supra, 463 U.S. at Further, advances (the has the au at 3312 “accused ultimate important dignity interests which can thority to make certain fundamental deci- by honoring the defendant’s deci- be served case, regarding sions as to whether to Arkansas, Rock v. sion. the Court indi- behalf”); or her ... own cated that “an accused’s Wainwright Sykes, 93 n. in his own version of events his own 2497, 1, n. 53 L.Ed.2d 594 97 S.Ct. 2510 more words” is “[e]ven fundamental (1977) C.J., (Burger, concurring) (“[o]nly personal right self-rep- defense than the such decisions as whether to ... testi- basic Faretta, supra, resentation” established ultimately for fy one’s own behalf are 806, 2525, 422 U.S. 95 S.Ct. make”); the accused to Rules of Profes- added). (emphasis The defendant’s choice 1.2(a) (1983) (D.C.C.A. Rule sional Conduct respect “must be honored out of that 1, 1990) (“In a criminal Order of March the individual which is the lifeblood of the case, lawyer by shall the client’s abide Faretta, supra, 834, law.” 422 U.S. at 95 decision, after consultation the with law- Thus, right at 2541. S.Ct. client will testi yer, as to ... whether the right self-representation, is root- like the see, Albright, e.g., v. But State fy”). 96 ed 122, 487, (conclud 492 Wis.2d 291 N.W.2d society, through the notion that when its Arkansas, ing, pre-Rock v. that “counsel government, brings an individual before right ... waive the defendant’s charges, the court to face criminal “that denied, 449 U.S. 957, testify”), cert. 101 respect is the for the individual which 367, L.Ed.2d 223. S.Ct. 66 requires lifeblood of the law” allowed, desires, if defendant be he so Ill accusers, speak directly and the jury court and that will decide his fate. remains whether question The govern- waived her 752, Teague, v. United States 908 F.2d by failing to assert her ment contends that (11th Cir.1990). jury returned the verdict before Accordingly, we hold that the defen from her silence. can be inferred waiver in a criminal trial is a dant’s addressing question In we consider personal right fundamental and which can waiver and requirements for an effective be waived the defendant. so judge con- responsibilities of the trial holding, join majority the vast of other we cerning a defendant’s ad federal and state courts have See, e.g., Teague, question. dressed the A. Martinez, supra 7, supra (11th Cir.); note person v. (9th Cir.); general rule is that a 883 F.2d at 756 Bernloehr, deemed 749, (8th Cir.1987); fundamental will be al and 833 F.2d Curtis, evidence 1070, only if there is record United States v. waived denied, relinquish (7th Cir.1984), demonstrating intentional 475 U.S. “an right or 1374, (1986); of a known L.Ed.2d 600 ment or abandonment 106 S.Ct. Zerbst, are benefits to There well-documented privilege.” Johnson 1019, 1023, rights 82 L.Ed. 1461 Since at procedure. 58 S.Ct. trial, (1938).8 required have therefore often fair We issue are engage the defendant respon- the trial weighty courts have a “serious and colloquy to ensure that an on-the-record is an sibility whether there determine[ ] [to] and intel- knowing waiver such intelligent competent waiver Thus, ligent. judge must example, Zerbst, supra, accused.” Johnson inquiry to determine whether conduct an addition, S.Ct. at 1006. U.S. at plea intelligent. guilty voluntary “pre- by the court on the record advisement Alabama, at Boykin postconviction disputes between clude[s] Carmichael, 1712; at 89 S.Ct. 1709 issue, counsel over the defendant and 327. A similar supra, 479 at Curtis, appellate review.” su- facilitate[s] place a defendant must take waives at In the situation pra, P.2d counsel, Zerbst, Johnson involving complaints trial counsel’s about 1023; supra, 304 U.S. at moreover, can preparation, Fowler, supra, 411 A.2d at problems concerns at a time when address trial, ex jury Adams v. United States community’s can rectified before the McCain, rel. expended on a trial. resources Jackson, (1942); L.Ed. prob Many of the courts consider the or the supra, 262 A.2d challenges on denial post-trial lem of based counsel, Douglas v. United conflict-free adopted the (D.C.1985). In “colloquy” method: must addition, required, the court is circum- engage in an on-the-record discussion with analogous in respects stances some she has know the defendant to ensure that case, to instant conduct on-the-record testify. ingly right to See Cur waived complains a defendant when about tis, 514; v. supra, 681 P.2d at State Neu preparation. counsel’s Monroe man, (W.Va.1988); Culber 371 S.E.2d 77 811, (D.C.), 818-19 cert. 1184, State, 412 So.2d son v. denied, 1006, 621, 58 99 S.Ct. 1186-87 State, (Miss.1982); 788 P.2d LaVigne see also v. (1978); L.Ed.2d v. 683 Farrell United 52, (Alaska (suggesting Ct.App.1990) 55 (D.C.1978). 391 A.2d 755 Absent required); waiver, should be Mar express such record evidence of an tinez, supra note 883 F.2d at 761-74 will not be treated (Reinhardt, J., ap- dissenting).9 Under this as waived. (motion Zerbst, supra, new trial supra, 8. v. Court 681 P.2d at 509 Johnson the stated: relief). post-conviction Curtis constitutionally and motion for the Since Sixth Amendment trial, anything during charged but at the had said entitles one with crime assist- not counsel, compliance this hearing ance of consti- trial he on his motion for new jurisdictional is tutional mandate an essential that he that he had not understood claimed authority prerequisite to a to federal court’s lawyer’s decision. Id. at override his trial could deprive liberty.... of life an accused his or judge appeal the had a On the court held represented by is If the accused ... not coun- "ostensibly duty, is of this waiver when there competently intelligently sel and has not ..., question testify] [to right, waived his constitutional the Sixth the to ascertain whether defen- the defendant jurisdictional as Amendment stands bar understanding right, complete of his had a dant including depriving him valid conviction sentence contrary ad- override the the liberty_ require- his or If this of life his Jones, attorney.” Id. at 508-09. vice of his complied not ment of the Sixth Amendment is ap- with Curtis' as consolidated whose with, longer jurisdiction has the court no post- during his peal, the testified proceed_ judge of the United States—to A testify he had wanted conviction motion corpus petition ad- whom a for habeas is disadvantages but counsel’s review found to examine the facts dressed—should alert threatening,” doing and was of so "somehow alleged they make for himself when if true ordering impression that counsel under absolutely void. the trial (Jones testify. he claimed that also him not 468-69, (foot- U.S. at 304 judge’s brought dispute omitted). had note attention, advised had him post- reported 9. Most of the cases have involved Curtis, See, e.g., collateral attacks. conviction 676 Albright, State v. (1983); calling if rests 96

proach, 472 the defense defendant, judge, (defendant as a matter 291 N.W.2d Wis.2d 487 routine, inquiry conducts outside testify failed to advise desire presence jury’s into the circumstances attorney said he not to when had decided Curtis, supra, the waiver. 681 P.2d at defendant; call the no record indication of 514-15. denied, testify), defendant’s desire to 66 L.Ed.2d colloquy approach not, however, justified rule in two testify gone has The demand unchal- lenged.10 objections testify ways. have led a second Either the different group adopt of courts to the “demand” rule by these courts as fundamen viewed tal, see, urged upon by government: defen- v. us e.g., Albright, State complain dant who fails to about the 129-30, 291 at 490-91 Wis.2d at N.W.2d pre- during conclusively (pre-Rock Arkansas decision), right. sumed have waived Courts defendant, presume that a “[e]ducated using the demand rule will entertain a past experience,” courtroom television and post-trial challenge based knowledge testify. has Edwards, See States Martinez, supra note F.2d at 761.11 (9th Cir.1990) (defen- group A has crafted a third courts judge, dant’s failure to advise notwith- compromise previous between two standing attorney testify,” statement “I methods, “post-trial challenge” ap- decided to call after defense counsel sponte sua proach: need not a trial him, effectively held to waive his trial, question during defendant but Allie, State testify); Ariz. bring post-convic- is free to defendant McKinney, State v. (1985); P.2d 430 (1977); People challenge tion based on a denial of the Kan. P.2d 432 Simmons, prevail To in such a chal- Mich.App. 364 N.W.2d Mecier, In re (1985); lenge, defendant must demonstrate Vt. recommended, attorney attorney-client improperly tion, as his did intrude on the rela- but he testimony denying judge’s protected not contest the the Sixth Amendment. occurred). Fifth, danger judge’s event had Jones admitted that ever admoni- there prior he had been informed of his cases introduce error into the trial. tion would right Sixth, to Id. The say judge constitutional at 509. is hard to when the should it by affirmed court denial his motion was judge appropriately advise the defendant —the appeals. testifying not does not know defendant is rests, opportune mo- until the defense not an contrast, by Boyd, complained before sentenc- Seventh, colloquy. conduct a ment to ing Nonetheless, right testify that her had been violated. judge not interfere defense strate- should Boyd’s appeal raises the same is- gy- post-conviction challenge. as a In both sues Martinez, situations, (empha supra only remedy note 883 F.2d at for a Moreover, (citations omitted). original) sis in violation be a new trial. would government’s that raise fear defendants will argues government "demand” for the The 11. after-thought” claims an un- such "as an after analogizing by rule to two in which cases applies just as much to collateral successful trial right placed limits on a court has defendant’s Boyd’s challenge. attacks as to Douglas, self-representation: supra, 488 A.2d at objections One summarized seven court has (stating that does not in dictum trial court requirement: refusing by "necessarily its abuse discretion grant interrupt a for continu a trial or motion First, testify right is seen the kind of as of coun ance sel’’); facilitate a defendant’s choice right that be asserted order to be must Second, Garris recognized. important it that (no (D.C.1983) deny mid- abuse of discretion to testify made at the of trial decision to be time denied, se), pro proceed trial motion testify as and that be raised the failure Third, L.Ed.2d by afterthought after an conviction. inapposite. Changing coun cases are right testify, These two advising of his the defendant impose great ad sel middle of trial can the court could influence defendant are on a court. There testify, threatening ministrative burdens trial his not to "thus waive other, why converse, analogous who no reasons a defendant constitu- the exercise of this testify a burdens the fragile right.” after tionally explicit decides to and more Fourth, justice. advising might a administration a so defendant court (Rein tinez, F.2d at 770 knowingly supra waive the note that he or she did not hardt, ignores a J., dissenting). rule See, Such e.g., at trial. (E.D.Pa. DiSalvo, reality “defendants who the courtroom that F.Supp. States 1989) speak of turn at their own trials (granting motion to vacate sentence out quickly reprimanded, sometimes post-conviction hearing); after a Siciliano court,” Vose, (1st Cir.1987) (re by the banned from the courtroom 834 F.2d Boyd. To corpus supra, at as was jecting petition Teague, habeas because may “ed the extent a defendant have been “suggests record [the defendant] that, that he or legally by ucated television” to realize speaking, knew he could testi right, opinion, such a as one fy if he chose” and he “must claim” she has relies, suggested, government waived). post-tri which the or is deemed Martinez, supra note challenge approach al is defended as less may know still judges, trial would the defendant burdensome on who during or objection must be made required routinely a silent advise Further, lost. testify, forever defendant of unwilling the Court was avoiding judicial influence on Johnson v. Zerbst inappropriate Alaska, “presume acquiescence the loss of LaVigne defendant. See rights.” 304 supra, 788 P.2d at 55. sum, 8, supra.

S.Ct. at 1023. See note B. requires rule a defendant demand right of which the defendant assert a We conclude that objecting in manner the by not be aware testify is one of those constitution inappropriate. told is defendant has been al in which the Johnson v. Zerbst places adopt a rule We decline determining apply standard wheth must such on the exercise of funda burdens right. er the defendant has waived that right. mental constitutional Supreme Court has concluded of the defendant to is “[e]ven not now decide whether We need personal more fundamental defense sponte duty had sua self-representation....” than the tri colloquy, however. Once the conduct Arkansas, 483 U.S. at Rock as al became aware that at 2709. The is “so inher S.Ct. had serting that she wanted to ently personal and the funda basic she duty to determine whether had called mental fairness a criminal knowing and intentional waiv had made any into question if surrendered [it is] the broad claim er. has made accused, one if ac other than (including her record out appeal that the relinquishes manner other cused [it] verdict) demonstrates burst after voluntary, knowing than and intentional testify. From her she was denied Curtis, supra, 681 P.2d at 511. waiver.” is unclear reading the record it our opinion judge the trial further that the “demand whether

We conclude It right. her also had by government is fatal that she waived rule” advocated Boyd whether from the record ly ignores The demand rule basic unclear flawed. Accordingly, in this right. fact waived her realities faced the defendant and approach than narrower case take a Many defendants are unaware we courts. she agree that Boyd suggests. While we a that issue, going one, lawyer, has raised serious testify which no not even their trial, addition, we can her fundamental fairness of away them. take clearly indicates agree that the record “requires the defendant the demand rule right, and we waive counsel, that she did not ignore inter the admonishments is necess a remand interject conclude that rupt proceedings, therefore the trial Further, nature in view of the uninvited, ary.12 [herself], fray.” into the Mar judge appeal her ... argues to "contend in that we are not free 12. The dissent hearing she holding when Boyd erred failed a remand in this case because order testify, Accordingly, judge the trial since the trial did not hearing hold a and the record does not judge’s hearing failure to hold a to deter- Boyd indicate otherwise made a know- Boyd mine whether had waived her ing voluntary waiver of her testify cannot be deemed harmless error. testify, the case for a must be remanded Wiggins, See McKaskle Boyd to determine whether made a 944, 950, 177-78 & n. knowing voluntary waiver of (1984) (self- 950-951 & n. 79 L.Ed.2d 122 If the trial finds that representation; doctrine, harmless error knowing did not intelli- make designed objectively to insure correct waiver, gent then she is entitled to a new outcomes, inapplicable to those trial.13 designed dignity to serve individual inter- occasion, however, We take this to advise ests); Chapman California, Bar,14 the trial court and the that while we 824, 827, today do not hold that the trial court has a (1967) (“constitutional rights so basic to a sponte obligation sua inquire of a non- fair trial their infraction can never be testifying defendant the defendant error”); Rosillo, su- treated as harmless rests whether the defendant has waived pra, (stating 281 N.W.2d at 879 that “the behooves personal is such a basic and inquiry court to such make an on-the-record that its infraction should not be treat- appeal in order to avoid issues on and col- Alaska, LaVigne attacks.15 See error”). ed as harmless lateral brought judge’s [6], dissenting opinion her dissatisfaction to the atten- at court’s this Dissenting See, opinion Contrary supervisory power long-settled. e.g., tion.” [2]. Oli contention, however, Boyd’s States, the dissent’s (D.C. brief ver v. United 384 A.2d appeal complaint ("in includes the 1978) supervisory juris the exercise of our diction, inquiry opportunity the trial court did we take this to set forth not make into fact, [Boyd] guidelines whether wished to certain to assist the trial court agreeing trial court seemed properly resolving questions to be with trial such in the fu [Boyd] ture”); counsel’s refusal to call aas witness Reed v. United 485 A.2d (D.C.1984) ("in when it said “that’s a decision that counsel supervisory the exercise of our Oliver, must make.” jurisdiction, we hold that ... judge’s The trial statement referred to above prosecutor may not cross-examine a defendant immediately Boyd’s occurred after outburst. prior prosecutor about a conviction unless the Thus, Boyd’s fairly brief must be read to include has a certificate under seal ... or the trial a claim that the trial did not make an D.M.R., advance....”); has ruled in In re appropriate inquiry Boyd brought after her con- (D.C.1977) ("exercising] supervi judge’s Boyd's cerns to the attention. While sory powers” require that trial courts "hereaf remand, specifically request brief did not comply strictly provisions ter of Juve imposed pleading" court has never an "artful 25(b)"); nile Rule see also Crowder v. United appellate rule briefs. (D.C.1978) (sug 343 n. 14 complaint As to the dissent’s "never language gesting supplement of a future judge's appealed from the trial denial of the instruction); jury v. Herrera-Fi motion," [2], dissenting opinion § 23-110 we (9th Cir.1990) (announc gueroa, appeal treat this as if no collateral attack mo ing attorney the new rule that an must signifi filed. tion had been To attach more during by pro pre-sentence interview cance to her failure to denial officer, deciding the Sixth bation penalize 23-110 motion would her for an un issue). Amendment successful collateral attack. Given this court's holding designed to be a "§ 23-110 might colloquy 15.The on-the-record follow that review," substitute for direct States, Head v. United suggested in Curtis: 1985), (D.C. it be would exercising judicial appropriate A trial court strange properly to treat as waived issues raised right testify appeal simply concern for the constitutional on direct because had also previous voluntary, been raised in a collateral attack mo should seek to assure that waiver is knowing by advising tion. and intentional the de- jury presence fendant outside the disposition, ap- the we do not address 13. Given right testify, that if he [or he has a [or she] pellant’s that she was denied effective claim testify prevent one can wants then no she] assistance of counsel. so, doing he she] him that if [or her] [or Johnson, prosecution supra, testifies the will be allowed 14. See 513 A.2d at 803. Al- her], binding though the dissent cites cases not cross-examine him that if he [or [or she] colloquy of re- (the “only disadvantages clear the supra, 788 P.2d at 54-55 Al- quirement appear to be overstated. way whether the defendant is to establish though judges required trial would be require is waiving right his to counsel testify, the who do not advise defendants judges to the trial establish on record In- relatively minimal.17 burden would be right tes the his defendant understands deed, colloquy, by engaging in the a trial tify waiving right,” since cases and is a record would judge would establish uniformity of “clearly lack in the treatment effectively right-to-testify settle the issues testify”); Culber case, thereby relieve the trial and Mississippi, supra, So.2d at son v. post-conviction proceed- judge of extended (“We of suggest judges to the trial ings.18 the trial court does not estab- “[I]f that, any the case where a defen- state under- lish on the record that the defendant is testify, dant the case does knowingly waives stands jury, should submitted to the the defendant testify, the it is difficult to establish at pres- the court out of the be called before such post-conviction relief whether right to jury, ence the of his advised LaVigne, supra, occurred.” waiver protec- testify.”). protective This action— Thus, many would P.2d at 55. defendants right, govern- tive of defendant’s raise claims that their be able to colorable convictions, finality ment’s interest Hence, testify had been violated. orderly ad- public’s and the interest in the matter, be practical courts would “[a]s justice, as well as counsel’s ministration inform defendants of the forced to [to avoiding assist- interest ineffective testify] post-hoc so as to avoid invalida- ance of counsel claim—avoids a host entire trial.” tion of the problems. record in a will be made Cir.1990). Edwards, (9th manner, con- timely eliminating retrials and Thus, of the col- the administrative burden pro- troversies on and in collateral judge, as loquy requirement on the trial concluded, ceedings long after trial appellate would in all well as the indi- experience in Colorado after less Curtis likelihood much than the burden be post-trial challenge under method.19 cates.16 McMullen, 1989); (Colo.Ct. felony prosecutor People P.2d 23 has been convicted of Fonda, App.1986); People will be entitled to ask him about it 712 P.2d [or her] thereby jury, (Colo.Ct.App.1985). disclose and that if felony jury conviction is disclosed to the jury then the can be instructed to consider it judge at one trial 17. We are aware that least credibility. upon as it bears his [or her] (Joseph) already colloquy. such See conducts privilege against self- In connection with the 87-556, Nos. Smith v. United incrimination, also be the defendant should W., J.). (King, not to advised that he has [or she] testify testify and if he does not [or she] (Ronald D.) No. Smith v. United 18. jury then the can be instructed about that 88-1525, eviden conducted two right. tiary hearings response attack. to a collateral Neuman, supra, See 371 S.E.2d P.2d 514. (adopting language). the same The trial Moreover, reject "seven reasons” clear the defendant that should make are, method, upon supra, colloquy examination, note alone, is the and not decision defendant’s First, prophy unpersuasive. Curtis, supra, P.2d at defense counsel’s. possibility eliminates lactic rule questioned who so 514. The defendant “as an will be asserted be deemed to have record would Thus, afterthought there after conviction.” his or her constitutional waived Second, government. no unfairness See note infra. instructions, can appropriate the defendant Curtis, advised of both the since 681 P.2d 16. Ever influencing the decision func not to the Colorado courts have decided Finally, although com way system requiring judges one other. tioned under a risk with the have been concerned inquire Post- mentators who do not defendants attorney- intrude into the challenges that a would in Colorado based on the conviction right see, Bernloehr, have, supra, relationship, e.g., appearances, to all been client See, court waiver People other trial relatively easy adjudicate. e.g., 833 F.2d at 752 n. inquiries creating ap Woodard, been viewed (Colo.Ct.App.1989); have not P.2d Judges routinely question Roelker, problems. (Colo.Ct.App. preciable People v. P.2d sum, procedure sentencing, would best that she had wanted to testi parties in permitted serve all of the interests of all fy attorney but that her had not justice. the administration of counsel, however, told her to do so. Her Boyd that he had advised Ms. not Remanded. prevented testify, and not that he had taking Boyd’s her from the stand. Ms. SCHWELB, Judge, Associate obscenity-riddled was not under outburst dissenting: See, e.g., oath and was not evidence. Dis respect my colleagues, I do With due Jury trict of Columbia Criminal Instruc appro- presents not think that this case ed.1978). (3d The trial No. 2.04 tions, priate profound occasion to address consti- no evidence that record therefore contains regarding precise tutional issues char- Boyd Ms. was denied acter of a criminal defendant’s appeal her must and it seems to me that desirability or the or lack thereof of therefore fail. colloquy procedure. my opinion, us, questions simply these not before spite of the fact that outburst was judicial re- and fundamental canons evidence, agree not I am inclined to with straint should caution us to defer their it, that, upon hearing the trial majority day. another resolution to judge might have done well to conduct a comprehensive inquiry as to what had more I lawyer and client. The occurred between important identify then, It is at the outset recollec- principals were precision appeal. nature of this with I am satis- presumably tions were fresh. regard, relegated by The critical fact this fied, event, hearing ought that a footnote, majority is that Ms. Boyd had filed have been held after Ms. appeal filed from her conviction but did agree her 23-110 motion. cannot denial, appeal judge’s from the trial resolved the trial that the issue was hearing, post-trial without a of her motion tactical indication that trial counsel’s pursu- judgment to vacate the of conviction him to advise his considerations had led (1989). ant 23-110 Accord- to D.C.Code § final decision was client not to my colleagues recognize, maj. op. ingly, as make, attorney. not for her for Ms. n. our review is limited to the at 672 how- and, Boyd’s problem Ms. go beyond trial record. We cannot ever, significantly, appealed asked to do we have been is that she never so. 23-110 motion judge’s denial of the § she contend hearing, nor did without Boyd argues appeal, Ms. On underlying conviction her from the that she denied record demonstrates was holding a hear- erred testify.1 her She brought ing when she her dissatisfaction on her apparently bases this contention Rather, she has judge’s attention.2 post-verdict complaint, renewed at the time contends, of the trial accepting guilty plea, on the basis see 1. She also a defendant before alone, not receive the effec- Alabama, record that she did Boykin supra, 395 U.S. at tive assistance of counsel. overly disrupting the at- S.Ct. at Monroe, partnership. torney-client See also su- indicates, true, maj.op. majority as the It is 818-19, Farrell, pra, A.2d at appellate Boyd’s brief con- Ms. 677 n. (requiring inquiry when defendant A.2d at 755 page following "the 5: statement tains counsel). alleges ineffective assistance of No inquiry into whether not make an trial court did any great- put suspect been forward to basis has testify." Appellant Nowhere wished inquiry er with an into the waiver of however, intrusion appeal, brief or in her notice These are the three most allege to make such an that the failure does she require- significant objections error, required was to do inquiry as she 28(a)(3), (5) D.C.App.R. a refutation of the other four "rea- & ment. For sons," Martinez, Rules. See under our heading supra argument in her pertinent note 883 F.2d at J., (Reinhardt, dissenting). brief is as follows: any promising. If she had indicated entirely on notion predicated appeal her the required, is be- disposition appeal that no additional evidence to way a reasonable the trial record demonstrates that cause hearing, judge’s failure to hold a from fact, rights. has denied she been her thereafter, then it at trial or would either nothing If proves the record kind. case appropriate to remand the with be Boyd’s appellate thought counsel that Ms. hearing now. Since directions to hold that judge’s of failure to error consisted the lack of complained has never about she hearing following a her courtroom hold hearing insufficiency a or the outburst, argued. so Since he should have record, however, colleagues my I think not, appeal since filed no on he did he deciding an which has not been issue her behalf from the denial without a hear- presented to us.4 motion, simply there ing of the 23-110 is § arguendo, “plain Assuming, that it was Judge us no claim that Moore before hearing, a for the to hold error” hearing held a or conducted should have one, at the time Ms. or a more extensive any beyond he Un- inquiry the one made. outburst, circumstances, we correct even Boyd’s these I do not think that cannot der Boyd’s appeal we or should recast Ms. “plain appeal error” if there is no from it. for her. treating majority that is It seems me appealed though Boyd as Ms. had the case Boyd might One well conclude Ms. motion, her or from the denial of 23-110 § promising appeal had a far more from the appeal from her conviction had based her denial of her 23-110 motion than from § judge’s on the failure hold sufficient original my her conviction.3 At least from neither, vantage point, hearing. has done I it could not have been less Since she argue trial court should have con- The defendant had a in her issue whether bankruptcy own her behalf and trial counsel’s decision ducted de review of court’s novo ignore request contrary his client’s is a violation of her point; finding hold- of fact waived rights. adversary ing "patently be unfair” since would (i). goes Appellant’s brief at The brief on to being apprised issue contest- was not was claim that record is clear from the two "[t]he ed); U.S.App.D.C. Christoffel transcript portions cited above and the Affidavit curiam) (1950) (per Appellant Appellant of testify wished to ("dispensatory discretion" to consider conten- right.” and was denied that Id. at comply appel- where counsel failed tions added). (Emphasis Boyd's Finally, prayer Ms. procedural requirements be late court's should judgment for relief ”[t]he is the lower government sparingly). The likewise exercised Appellant court be should reversed because Boyd making Ms. to be did understand permitted was not her own behalf majority supposed de- contentions on which the Boyd simply allege Id. ...” at 8. Ms. did not based, respond and did them cision my colleagues the error which have or found or, all, any appreciable if at extent its brief request relief which her. awarded unfair, my opinion, argument. It rule majority Boyd’s also views Ms. failure against party to which that on a rationale appeal denial § from the of her 23-110 motion reason to re- party never had occasion or suggest, contrary, on the irrelevant. spond. revealing light proper this failure casts arguments appeal of her in her construction accompanied by an affidavit motion was 3. That contending from were her conviction. If she the effect that the trial court Ms. from necessary, that an this additional testifying. This prevented from affida- had her asking simply accomplished by be could properly us if Ms. been before vit would have denial, hearing, court set aside post- appealed of her from denial had Boyd’s post-trial of her motion. Ms. failure motion, properly us now. but appeal denying the order her 23-110 motion namely, what evident from her brief- confirms directions to that a remand with 4. I do not think us that she never intended hearing is included” a "lesser conduct further hearing. judge’s to hold a review failure Boyd’s remedy implicitly Ms. contained within considerations, light these I cannot outright I so conclude reversal. demand agree majority’s perception that Ms. with the a trial record her is based on because Boyd’s fairly "must be read include brief supporting competent her evidence devoid of ap- claim did not make an majority re- The relief ordered claim. brought propriate inquiry con- after [she] record, expansion seems quires an judge’s cerns to attention." See In re Texas entirely different of an me to a horse Mortgage Corp., Services (5th Cir.1985) (failure specifically to raise color. however, agree majority’s disposition My colleagues, cannot with the have chosen to appeal. “advise court and the Bar” that it of this “behooves” the trial court to follow the colloquy procedure. Maj. op. at 678. “It II judicial is well settled that do not tribunals authority advisory opinions have to issue question Even if the whether the trial authority granted unless that has un- been required should to hold a further be specific der a legislative constitutional or properly were before I do us—and Smith, provision.” Smith v. suggest not think it is—then I that this is (D.C.1973)(citation omitted). ques- A hardly broad-ranging the case for advice to depends contingencies tion which judges lawyers and about the desira- ripe judicial not come about for bility colloquy of a between the and justiciable only An issue is resolution. Id. regarding the defendant the latter’s parties' rights may “when the be immedi- ately judicial affected ... a decision brief, argu- Neither in her nor in the oral [resolving Id. Whether we do or do it].” ment sponte which the court ordered sua adopt encourage or the use of the collo- submitted, after the case had been did Ms. quy rule will make no difference to the Boyd suggest any requirement of such parties controversy. to this fact, generally adopted. be duty every “The of this as of other defense counsel stated that no such collo- tribunal, judicial to decide actual contro quy constitutionally required was in the by judgment versies which can be carried government routine case. The did discuss effect, opinions give upon into and not to brief, colloquy procedure in its but was questions propositions, moot or abstract placed on notice that we were consider- principles to declare or rules lawof ing adoption mandatory of a rule that a which cannot the matter issue affect of the kind described the ma- Green, 159 the case it.” Mills v. jority be conducted all cases.5 The initia- 651, 653, 132, 133, 40 L.Ed. departure tive for this substantial from accord, (1895) added); (emphasis Local practice in Superior current Court 8-6, Oil, No. and Atomic Chemical Workers entirely majority. comes do not Missouri, In t'l Union v. think it wise for a division of this court to 391, 394, 367-68, effecting procedural reforms in this (1960) (“[t]o express opinion upon the manner, especially any pragmatic appellants’ would merits of the contentions demonstration of need and without in- ignore this limitation be to basic [articu- put judges Superior Court, from the of the duty upon lated in and function Mills ] surely who would have an “on the scene” Court, disregard principles of and to (or practicality desirability sense of the long judicial administration established thereof) proposed proce- lack of the new followed”); Smith, supra, 310 repeatedly dure. concisely put in A.2d 231. As the court Smith, Cal.App.3d

Assuming, Younger that a remand is arguendo, (1973), “courts Cal.Rptr. proper, all that this court needs to do is to the occasion should not decide more than explain that the ultimate decision whether Morris, 87 (not demands.” also Johnson v. See attorney’s, is the client’s 922, 929-930, 1299, 1305 Wash.2d 557 P.2d judge apparently thought) as the banc): (1976) (en evidentiary hearing to remand for an rule, general determine whether Ms. fact this court will decide As a testify. Nothing questions necessary denied more such as are required dispose presented of the case of this case. a determination Although colleagues formally colloquy procedure, maj.op. my and that adopted requirement, judges procedure all of the inter- such a most trial "would best serve parties jus- expected appellate administration of can be to take to heart an ests of all them to declaration that it 'behooves” follow tice.” Id. at 679. dispense “principles consideration, judgment, not render deci and will long necessity, partic judicial administration established of such sions in advance ularly one, ^[6] when or involves question the construction is a constitutional 361 U.S. pra, repeatedly Local No. followed.” 367-68, 80 S.Ct. at 8-6, su- generally, 21 statute. See a C.J.S. cases, My colleagues cite number (1940). Courts 182 n. in which maj.op. at 678-679 My colleagues rely on this court’s “su- authori supervisory has exercised its court pervisory power” justify their detour D.M.R., them, In re ty. In the earliest of and the domain dictum into the dread (D.C.1977), simply we 238 trial court and provision of “advice” to the its comply court to directed the trial Maj. agree I cannot op. at 678. the Bar. rules; supervi invocation of the own appropriate exercise of our that this is an view, was, less sory my more or power authority. Supreme Court supervisory Oliver superfluous. power supervisory has warned that and Reed v. (D.C.1978) A.2d 645 384 See, e.g., applied with caution. must be (D.C. A.2d 619 United 485 727, 785, Payner, 447 States 1984), procedural issues dealing with both 2439, 2446, L.Ed.2d 468 convic regarding impeachable use of exercised, power then If restraint and, tions, further after the court went dependent any provision Con- not holding matter had been handled applicable can or in statutes be- stitution wrong way, explained what converting open-ended an come vehicle Al procedure would be. thought correct judges the law of individual into views decisions do not though these and other jurisdiction. of the re any limiting prudential principle discuss justice, considerations of ... “Guided ex garding the circumstances under supervisory powers, the exercise of power is supervisory deemed ercise of the limits, may, within formu federal courts adopted in them are appropriate, the rules procedural specifically re late rules not to the issue closely related least more quired the Constitution Con the. appellants than true presented by Hasting, gress.” United States case.7 499, 505, 1974, 1978, S.Ct. seen, Here, the defendant has as we have (1983) added). (emphasis They L.Ed.2d 96 procedure which complained not about the implement so authority do Rather, she claims judge employed. remedy recognized rights, for violation of to reversal on the that she is entitled preserve judicial integrity, pro and to procedure as it exists under record Id. illegal remedy conduct. vide my Finally, utilize. which the did implicated of these considerations None 678-679, say, maj.op. at colleagues power pro supervisory does here. court holding are “roving commission” to vide courts with obligation to utilize sponte has a sua Jacobs, wrongs, simply cannot procedure, and Cir.1976); see also United (2d power exists to (7th supervisory Stanford, believe that States judges and denied, to trial give Cir.1978), allow us advice 440 U.S. or, by way dictum. (1979), my lawyers S.Ct. shadowy, concededly are distinctions court’s extreme reluc- 7. These

6. For a discussion of this questions persuasive au precedents are until tance to address constitutional and the federal Columbia, to, 78, Olevsky v. District thority we have It behoove than that. but no more (D.C.1988). banc, articulate, Allen-Brad- A.2d See also 548 ley en preferably this court to Local, Employment Rela- etc. v. Wisconsin by parties presented who appropriate an record Bd., S.Ct. tions pruden question, proper have contested (1942) ("Constitutional questions are L.Ed. 1154 supervisory au of its the exercise tial limits to abstractly.... They will to be dealt with F.G., thority. Compare re anticipated but will be dealt with not be they dissenting 1990) (en banc) (D.C. with the n. 1 upon appropriately a record raised opinion, at 730. id. us.”) counselling authorities re- Given the limited view my

straint and adherence to a function, agree I cannot judicial presents appropriate vehicle

this case pros and cons of

for an evaluation of the colloquy rule or for the selection of the If

pros persuasive as more than the eons. hold, on a record in which the

we were to reached,

question properly was raised and colloquy procedure is constitution-

ally required, that would of course be a however, my opinion,

different matter. here, not the situation and we should

this is which we

confine ourselves to the issues

must resolve. judgment.8

I would affirm the Woll, appointed by this Carey

David D.C., brief, Washington, on the appellant. for SMITH, Appellant, James A. Jay Stephens, Atty., B. John R. III, Fisher, Wyneva Roy W. McLeese John- son, STATES, Appellee. Barry Wiegand, Attys., Asst. U.S. UNITED brief, appellee. were on the No. 90-195. Appeals. District Columbia Court FARRELL, Before BELSON PRYOR, Judges, and Senior Associate Submitted Jan. Judge. Decided Jan. 1991.*

PER CURIAM. appellant’s convictions appeal This contraband, introducing pistol, into penal institution in violation of D.C.Code (1989), weapon of 22-2603 and related fenses, into challenges only the admission by appellant of a statement evidence product he contends was the of custodial provi interrogation and obtained without ** warnings. We affirm. sion of Miranda 1990); was denied Mack v. also contends that she 8. Ms. failed, 1990). (D.C. She the effective assistance of counsel. however, denying order from the * originally disposition issued in this case was motion, palpa- and the trial record is § 23-110 Judgment Opinion and as a Memorandum bly either deficient insufficient to demonstrate being published upon January and is meaning prejudice performance within the or Washington, publish. grant appellee’s motion the court's 466 U.S. Strickland 2052, ** Arizona, See, (1984). e.g., Simpson Miranda v. (D.C. 16 L.Ed.2d

Case Details

Case Name: Boyd v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Jan 7, 1991

Citation: 586 A.2d 670

Docket Number: 86-1734

Court Abbreviation: D.C.