United States v. Donald Teague

CONCLUSION Department

Having determined regulation aids auxiliary of Education’s denying auxilia- from universities

prohibits on the basis to students ry aids aid, financial for qualify not do permissible on a is based regulation the Rehabili- section

construction amended, AF- we 1973, as Act of tation enjoining order court’s district FIRM auxiliary handi- aids denying from UAB consideration based capped students AFFIRM alsoWe status. financial

their enjoining UAB order court’s district special stu- auxiliary aids denying from Stud- Special enrolled those dents conclusion on our based ies program, applies such regulation auxiliary aids to them application that its students of sec- construction permissible aon based UAB find that we Because for accommodation reasonable made a its provision handicapped services, REVERSE we transportation issue, and holding to this court’s district court district this case REMAND remedy. appropriate of an consideration REVERSED part,

AFFIRMED and REMANDED.

part, America, STATES

UNITED Plaintiff-Appellee, Defendant-Appellant. TEAGUE,

Donald

No. 89-8181. Appeals, Court States Circuit.

Eleventh 8, 1990.

Aug. Morrison, Jones,

William A. Morrison & Womack, P.C., Atlanta, Ga., for defendant- appellant. Brill,

Gerrilyn Atlanta, Asst. Atty., Ga., for plaintiff-appellee. CLARK,

Before Judge, Circuit *, Judge, RONEY Senior Circuit **, Judge. ATKINS Senior District CLARK, Judge: Circuit Defendant appeals Donald district court’s denial of his motion for a by jury new trial. was convicted possess marijua- of one count of na with intent to distribute in violation óf 841(a)(1) 21 U.S.C. and one count of us- § ing carrying a firearm in relation to a drug trafficking crime in violation of 18 924(c). Teague U.S.C. contends § holding district court erred that he was not denied his Sixth Amendment to, and, testify in his own behalf alter- natively, that his counsel was not ineffec- advising him testify. Teag- tive for not to argues appeal ue also that the district denying court erred in his motion for ac- quittal, arguing present- that the evidence him. ed at trial was insufficient to convict We reverse.

* ** Atkins, 34-2(b), Clyde See Rule Rules of the U.S. C. Senior U.S. District Court of Honorable Florida, Judge sit- Appeals for the Southern District for the Eleventh Circuit. ting by designation. Teague remained the truck. back of

BACKGROUND during conversa- in the truck seated at trial shows presented The evidence Patterson who agent asked tion. The charges against criminal him he was, told and Patterson following occurrence. On from arose back two men walked partner. The En- Drug undercover an August truck, got Patterson of the toward the cab (DEA) re- agent Administration forcement seat, agent remained and the in driver’s the beeper from digital page on a ceived the two agent then talked to The outside. During several subse- Patterson. Kenneth through driver’s side window. the men agent, the with quent phone conversations Teague if he agent that asked The testified buy a his desire to communicated Patterson Teag- partner, and that Patterson’s he was and two marijuana, the of large quantity agent tes- affirmatively. responded The ue whereby the agreement an men reached of the terms he then reviewed tified that marijuana pounds agent sell deal, concern about expressing some the agent per pound. The $700 Patterson for the up to come with ability Patterson’s in ex- pounds to deliver the agreed days. The $17,500 a few additional from Patter- payment an initial change for him not to told agent testified that a few $35,000 payment final a and son of trustworthy. worry, that Patterson men even- $17,500. The two days later $35,000 to see the agent The then asked deal on Au- the agreed complete tually bring. agreed to had Patterson gust not until that it was agent testified The Pat- Kenneth August Prior to remove Patterson point that saw this he assist Teague to hired Donald terson had place it on bag the and handgun from the on Pat- work renovation completing him in into the agent then leaned seat. The the Atlanta, Geor- home mother’s terson’s through the flipped and bundles cab 17, Patter- morning August gia. theOn he was appearance the money, giving away from trips Teague made two son and The all see it was there. checking to trip they went the first the house. On ac- suggested that Patterson then agent shop store, to a then bait and the hardware car to see the him to his company on foot trip they re- the second buy beer. On he The also testified marijuana. agent buy ice. Patter- shop to the bait turned to discussing and overheard Patterson stops at the the one son testified accomplish transfer of the they would how the he got out of truck shop before bait agent’s car to from the marijuana the bag that a brown handgun from removed truck, got out of the Patterson theirs. Teague. and himself sitting in between seat, and fol- handgun on the leaving handgun on placed that he He testified At parking lot. agent across lowed money seat, some and removed the bench gave pre-arranged agent point this their return Shortly after bag. from the Patterson and signal, arrest and out called trip, Patterson second from the arrested. were him, and truck with get in the Teague to Patterson testified off. men drove two a three- grand jury returned A federal in the they got that, either before »at trial for con- against both men indictment count drive- out of the truck, they started before intent to marijuana with spiring possess driveway, they left the way, or soon after marijuana distribute, possess going. they were him where asked distribute, aiding intent to with Teague that he told testified that Patterson a fire- possession other abetting each some herbal.” out going to “check trafficking drug awith in connection arm parking lot men then drove two plea entered into Patterson offense. restaurant, previ- Patterson of a where Teag- government, but agreement with the DEA arranged to with ously meet Director his innocence. The ue maintained agent. Program for the Federal Defender appointed Georgia was District of lot, got Northern parking Patterson Once him three met with Teague. She to defend with truck and talked out of the prior his, talking times addition and that he often rode with it in the him telephone. numerous times At truck. R3-77-112. hearing held on Teague’s motion for a However, he did state that Teague saw trial, she that Teague new testified made it gun on the seat were at the very known to her from the beginning that shop, bait well before they arrived at the he wanted to tell the his side of the restaurant parking During lot. story. During their meeting, second she Teague indicated to in hushed conducted a mock direct and cross-examina- conversations at the defense table that this tion with him. She testified during testimony, and other testimony by the DEA practice very emotional, he became agent, was false persisted in wanting blurted out answers completed before she to know when he would have his turn to questions, the and cried throughout most tell his side story. of the Nevertheless, experience, it. Based on this she decid- presenting after several character Teague ed witness- good that would not be a wit- es, and the testimony Patterson, although ness. She testified that she felt jury perceive the “truthful, would him announced that the defense rested open, very sincere,” R3-19, and she was court and recessed for day. the R2-112. that afraid he would not listen ques- to the The record shows that it was not until they tions, and get would let himself twisted leaving were day that that his attorney by prosecutor the around under cross-ex- again discussed with him his desire to testi- amination. fy. R3-19-21, explained R2-112. When he gun that the had not

She also been taken out testified that she him of the told that bag agent until he had the the testify, asked to see money, and that she the ruling was not it entirely, out told him thought but she that his testimony im- wasn’t should wait they to see how the evidence portant because the agent already had tes- developed at making trial before a final events, tified that version of and not to During decision. meeting, she did not worry about it. R2-17-18. The next day know whether Patterson would for closing arguments made, were jury and the the prosecution Teague, or for and she felt retired to deliberate. R2-112-119. The they that should wait Teag- whether see jury acquitted Teague of the conspiracy ue’s necessary was before mak- charge, but found guilty attempt him ing a final decision as to whether he would marijuana possess distribute, with intent to use of a and firearm in drug relation to a At the it turned that Patterson out trafficking offense. Teague elected to many for and in Teague testified at his motion for a new respects his testimony was favorable to trial that he would have testified at trial Teague. Patterson testified that he did not thought he that that when Patterson called Teague tell quantity about the of “herbal” get himto into the they truck that were involved, money the amount of that going to the get hardware store to a drill Teague was not in any way, deal in the he had bit told he Patterson needed. Addi- that, although Teague and did not realize it tionally, although he knew Patterson time, at the he had asked to ride marijuana, smoked did not he know what along for his protection own because he Patterson meant when he they said were agent never dealt with before. He going check out some “herbal”. He also testified that when agent he told the have testified merely that he nodded partner was his lying he was be- agent when he Teag- asked whether thought he agent cause would back out partner, was Patterson’s ue and that he did thought on the deal if he that someone was say anything present agent. “in else to the He who wasn’t on” deal. Ac- cording Patterson, agent would have testified that stating other than good “figures”, Patterson was Patterson money, for the talked but that he did say anything agent. did not not know from their conversation that gun Patterson also testified that the was talking marijuana. about were R3-33-35. brought gun specifically DISCUSSION during this transaction. Fur- protection the Evidence Sufficiency A. thermore, on the seat gun was out argu Teague’s first to turnWe throughout men the reach both within presented at the evidence ment that agent, and when conversation with him of either insufficient to convict was the agent left the truck to follow Patterson intent to marijuana with possess car, seat gun remained on the in relation to distribute, firearm or use of a these circumstanc- Teague. next Under reviewing trafficking drug crime. gun es, shows where the evidence support sufficiency of the evidence during the transaction present conviction, the evi must view we criminal men, for use both openly available favorable to the light most dence submitting to the did not err the court Brooks, 703 government. United States aided the issue of whether Cir.1983). (11th DEA F.2d used, of, or himself in the use abetted Teague participated in agent testified drug with a traffick- firearm connection Patterson, told him conversation (Holding ing at 1393 crime. See id. assured him partner, Patterson’s weapons hidden presence of proof of for the additional good Patterson was on the floor ceiling and under clothes help Patterson to $17,500, agreed and with used to store and laundry of house room a from marijuana transfer him cocaine is suf- large quantities of distribute marijua large quantity of The agent’s car. 18 violating of to convict ficient defendant circum is sufficient money involved and 924(c)). na U.S.C. § intent to dis prove an evidence stantial Testify Right to Poole, Teague’s B. 878 F.2d v. States United tribute. Cir.1989). A (11th reasonable 1389, 1392 if the that even Teague next contends this evidence that conclude from could him, his to convict was evidence sufficient in Patterson his Teague aided and abetted it was because conviction must be reversed marijuana with in possess Fifth, Sixth, and of his obtained violation to distribute. tent rights testify Fourteenth Amendment Teague ar- Specifically, his own behalf. for viola conviction support To very attorney from the his knew gues that 924(c),1 government of 18 U.S.C. § explain his beginning that he wanted used a fire that the prove defendant must jury, to the continued actions in relation to that the use and arm testify known to his desire to make his Poole, 878 F.2d trafficking offense. drug trial, that his attorney during and attor- use, government To show 1393. rest decision to ney final fired, were the firearms not show that need allowing him to case testi- defense without during brandished, displayed or even of his desire fy in direct contravention a fire possession Id. Proof offense. testify. trafficking offense is drug during a arm a new the district integral his motion “an On for possession is if the sufficient testify Teague's will to of, held that court of, commission facilitates part Rl-26-10. by his counsel. not overborne trafficking Id. Viewed drug offense.” attorney testified The court noted that govern light most favorable in the meeting Teague that at her second Teague was ment, shows that the evidence had the to testi- told him that he truck she gun’s presence aware make, but that it was his decision park fy, and the restaurant they arrived at before he not her advice tell the he heard Patterson and that ing lot imprisonment 924(c) crime ... be sentenced provides: such § 18 U.S.C. years.... five for Whoever, any (1) during in relation to subsection, (2) the term purposes this For drug trafficking ... for of violence crime felony any "drug trafficking' means crime” prosecuted in a court of the which he firearm, shall, punishable Controlled Substances States, under the carries uses or (21 seq.)_ et provided U.S.C. punishment Act addition to the his emotional state make because Court held point this in the devel “[a]t him vulnerable cross-examination. The opment of our adversary system, it cannot court noted further that made no be doubted that the defendant in a criminal objection on the record at trial case has the to take the witness stand attorney allowing rested his case without in his or her own defense.” testify. him to Arkansas, Rock v. 44, 49, 483 U.S. therefore, The court concluded S.Ct. (1987). 97 L.Ed.2d 37 Be appropriate analysis Teague’s motion cause asserts that it was his attor was as a motion for a new trial based on ney abridged who this at his ineffective assistance of counsel. The appeal presents us with an issue that has attorney’s court found that his reasons for open been left in this circuit for some advising Teague sound, not to were years. In Wright Estelle, 572 F.2d 1071 especially light her considerable crimi (5th Cir.), cert. denied 439 nal experience and her careful as (1978), 58 L.Ed.2d 680 the former sessment of as a through witness Fifth sitting Circuit2 en banc declined to the mock direct and cross-examination. decide whether a defendant has a funda R1-26-11. The court further noted that Fifth, mental under the Sixth and harmless, any error was was not Fourteenth Amendments to testify in his prejudiced by his failure to own behalf which cannot be waived Teague’s testimony court found that auspices under the of “trial strate merely Patterson going told him he was gy”. The judge that, six majority held “check out gun some herbal” and that the case, under the facts of that even if the was not removed the bag from until the defendant right, any had such a error in money asked to see the would have depriving the right defendant of that merely duplicated already present evidence been Chapman harmless under v. by agent. ed Patterson and the The court Califor nia, 18, 824, 386 U.S. 87 S.Ct. 17 “[presumably, Teague also held that L.Ed.2d (1967). Estelle, Wright would have admitted that he had 705 v. heard 572 F.2d at drug purchase, now, Patterson talk a about and 1072.3 Until no case decided there is no reason to think that he would circuit since Wright v. Estelle has ad specifics have denied ... question dressed the of whether an attor pres transaction were discussed in his ney’s waiver of a right defendant’s to testi Thus, concluded, ence.” Id. the court be fy against the will defendant is a Teague’s testimony cause would have been constitutionally effective waiver. For largely duplicative, any error in not allow below, reasons set forth hold that a we ing testify him to was harmless. right testify defendant’s to is fundamental defendant, personal such that it Clearly defendant had a right may effectively by constitutional not be testify to waived counsel own 1987, Supreme behalf at his trial. against the defendant’s will.4 Prichard, se, City pro right 2. In Bonner v. only 661 F.2d 1206 and thus it is a that can be (11th 1981) adopted himself, Cir. the Eleventh Circuit by waived the defendant not his attor- binding precedent all decisions of the Cir Fifth ney. Id. at 1074-80. prior cuit made to the close of business on 30, September 1981. join 4.We with four other circuits that have explicitly right held that the defendant’s to testi judges joined concurring opinion 3. Five in a fy personal is fundamental and to the defen argued enjoys which that while a defendant dant, against by and cannot be waived his will right testify to at his own the decision of attorney. United States ex rel Wilcox v. testify essentially whether he will is a matter of Johnson, 115, (3d Cir.1977); 555 F.2d 118-19 strategy properly that is allocated to the Lane, 279, (7th Rogers-Bey v. 896 F.2d 283 Cir. attorney. defendant’s 572 F.2d at 1072-74. 1990); Bernloehr, 749, Godbold, United States v. F.2d Martinez, Judge joined by judges, 833 two other ar- (8th Cir.1987); gued strenuously 751 United States v. dissent that a defendant’s 750, Cir.1989). (9th right testify importance F.2d Unit to is of a fundamental 883 756 See also Butts, (D.Me.1986). right proceed F.Supp. similar to that of a defendant’s to ed States v. 630 1145 758 15, recog 15, n. consistently

This 819 95 S.Ct. at 2533 n. 45 circuit L.Ed.2d 562). many right of the tactical decisions grounded nized This is also by attorneys throughout the Compulsory Process Clause the Sixth representation their of the defen Amendment, course of grants which an accused the the waiver of con “implicitly dant involve right call to witnesses whose is rights” require but do not stitutional material and favorable to Id. his defense. personal consent. United defendant’s 52, 2709, at 107 S.Ct. at 97 L.Ed.2d at 37. Joshi, (11th 896 F.2d 1303 Cir. States v. Furthermore, right to is “a nec- However, 1990). “[wjhere inherently an essary corollary Fifth Amendment’s right importance personal of fundamental guarantee against compelled testimony.” involved, [personal] con is the defendant’s 52, 2710, at Id. 107 at 97 at S.Ct. L.Ed.2d (citation required.” at 1307 sent is Id. 37. omitted). that have been found Rights multiple These constitutional sources of inherently personal and of fundamental be right sug- the defendant’s alone defendant, only importance such gest importance its fundamental ad- our counsel, may waive them include the Furthermore, versary system. the Court’s Alabama, right go v. Boykin discussion the Sixth Amendment as 242, 1711, 238, 1709, 395 89 S.Ct. 23 gives this right important source for an (1969), right 274 tried L.Ed.2d be insight inherently into its personal nature. ex jury, Adams United States rel. The Court noted that the Sixth Amendment 269, 278, 236, McCann, 63 317 U.S. S.Ct. “grants personally accused (1942), 241, right 87 L.Ed. 268 right (quoting to make his defense.” Id. counsel, represented by Faretta v. Califor California, Faretta v. 422 U.S. at 806, 835, nia, 422 U.S. 95 S.Ct. 562). S.Ct. at at 45 L.Ed.2d (1975), 45 L.Ed.2d and the Court reasoned that “an accused’s Noia, 391, 439, 83 appeal, Fay v. 372 U.S. present his own version of events in his 822, 849, (1963). S.Ct. 9 L.Ed.2d “[ejven own words” is more fundamental that a defendant’s Our conclusion personal to a defense than the among inherently person- these self-representation.” Id. at importance rights al of fundamental 2709-10, 97 L.Ed.2d supported defendant waive is only the comparison This right of a defendant’s to by Supreme decision in Rock v. the Court’s testify right repre- to defendant’s 2704, Arkansas, at at 483 U.S. light brings qualitative sent himself to the Rock, Supreme In 97 L.Ed.2d at 37. to difference between decision as may held that a state not constitu- Court testify whether the defendant should per against rule tionally enforce se myriad of other tactical decisions that hypnotically of testi- admission refreshed are made defense counsel alone. On mony by the defendant. The rea- Court level, question one of whether the de- rule soned that to the extent that such a testify is matter of pure fendant should imposes restrictions on the defendant’s strategy, requiring judgments is- arbitrary right testify dispro- to that are or sues such as whether additional testi- portionate legitimate purposes to of limit- mony helpful, will be whether defen- ing testimony, infringes it on a defendant’s effectively dant will be able to communi- right it held several testify, to which has cate, the jury and whether will find the right sources the Constitution. The attorneys Defense defendant credible. “necessary ingredient[] testify is a take routinely control these sorts of guarantee Amendment’s Fourteenth deciding for their clients decisions deprived liberty no without one shall be call, what witnesses will at absent process due of law.” Id. at 107 S.Ct. performance falling objective below an at 37. “It is one of the 97 L.Ed.2d rights process due standard of reasonableness causes that ‘are essential to ” defendant, adversary process.’ prejudice Id. the defendant’s law in a fair (quoting at will even if these California, Faretta v. 422 U.S. conviction not be reversed against were made his will. The prove decisions failed to that he had acquiesced reliance on Faretta in indi- Court’s Rock the decision to rest the defense without cates, however, right that the testimony.5 find, defendant’s his however, We also involves the same values absence of an on the record objection by require that the defendant be allowed the little, defendant himself is of if any, proceed pro probative se if he so chooses. In value in determining whether the Faretta, recognized the Court that “al- decision that the defendant would not testi- though may fy conduct his was the defendant’s own decision. [the defendant] ultimately to his own own detri- In affording a criminal defendant a ment, his choice must be honored out of right counsel, fundamental the Constitu respect for the individual which is the recognizes that criminal defendants lifeblood of the law.” 422 at 95 are often unschooled in the intricacies of (citation S.Ct. at 45 L.Ed.2d at 562 our justice criminal system, and that with omitted). Implicit in Faretta the notion out the counsel, assistance of will likely society, through government, that when its suffer an overwhelming disadvantage in brings an individual before the court to presenting their defense. The defendant charges, respect face criminal “that for the relies on his counsel to pro understand the individual which is the lifeblood law” cess the trial itself and recognize requires allowed, that the defendant be if proper time for the defendant to be called desires, speak directly so to his accus- as a witness. The defendant not real ers, jury and the court and that will decide ize until after the has retired to delib his fate. erate that proper time for Furthermore, passed. once a defen Teague’s Right

C. Was dant advantage elects to take of his Testify Violated? counsel, he is told that all further com special Because of the nature of the munications prose with the court and the relationship between defense counsel and through cutor should be made attorney. defendant, a defendant’s to testi any testimony Aside from may give fy, much like the to effective assist pre-trial hearings during a defen counsel, may ance of abridged by permitted speak dant is not directly attorney, through fact, own pros no fault of the court. interests deco ecutor or the court. To determine whether rum and the jus smooth administration of violated, tice, Teague’s right we speak defendants who turn out of must determine whether the final decision their quickly reprimanded, own trials are against courtroom, that he would not was made and sometimes banned from the words, his will. In other we must deter by the court.6 It would be anomalous to mine a knowing, whether vol consider the to counsel of fundamen untary intelligent right importance waiver of his to tal because of the common lack Martinez, testify. v. understanding process by United States 883 of of the trial Zerbst, defendants, (citing F.2d at require 756 Johnson v. 304 and to a defendant to 458, 464, 1019, 1023, 58 rely attorney spokes U.S. 82 L.Ed. on his to be his sole (1938). court, courtroom, citing person 1461 The district while at the same any objection by Teague holding by failing speak absence of time that out to at trial, Teague on the record at held that had the time proper a defendant has made a reasoning recently (11th adopted by Wainwright, 5. This 6. Foster v. F.2d 686 1382 Cir. Martinez, 1982) v. Ninth Circuit F.2d 750 United States 883 (Holding right that defendant forfeited his (9th Cir.1989) (Holding that defen- present by interrupting proceed to be at trial at dant’s silence right wards, establish waiver of ings warning by judge, though after even behav testify.) See Ed- also States v. violent), ior was neither abusive nor nied, cert. de (9th Cir.1990) (Post-Mar- F.2d 897 445 1209, L.Ed.2d 459 U.S. 103 S.Ct. 75 holding decision that defendant’s silence at tinez Allen, (1983). generally See Illinois v. 397 testify, despite trial waives defendant’s (1970). L.Ed.2d 90 S.Ct. defendant’s contention he was that unaware of testify.) his Teague’s right violation of intelligent doubt that the voluntary and waiver knowing, to his convic- not contribute impor- did right of fundamental personal aof Chapman California, 386 U.S. tion. testify. such as tance 828-29, 24-26, 17 L.Ed.2d 705 87 S.Ct. Teague’s motion a hearing on At the (1967). attorney testified trial, Teague’s trial new a new analyzing Teague’s motion for Teague that he had a she that informed assistance of an ineffective trial under it his decision testify, and that was right to theory, district court found counsel that he made testified also to make. She Teague prejudiced had not been that beginning that very from the her aware testify. did not allow him attorney his he continued testify, and that wanted to Teague’s that The court reasoned because throughout testifying her ask about only him that testimony Patterson told that testimony he trial, presented as witnesses to “check out some herbal” going he was She further testified to contradict. wanted until the gun appear did not and that the testimony she decid- that after Patterson’s already money to see the agent asked testimony wasn’t neces- Teague’s ed that through the to the presented been indication despite her that sary, and earlier Patterson, testimony would his agent and for his testi- they discuss the need would The court largely duplicative. have been the defense she mony at the rested “presumably” found that also Teague one consulting with case before that had heard have admitted would leaving the court- As were final time. drug and would about a deal Patterson talk again asked her when he room and specifics not have denied story, she tell his side of get to would presence. in his Rl- deal were discussed testimony that she told him testified 26-11. and not to gun important wasn’t about make a motion it. did not worry about She court, by the district These found facts the case to re-open morning next i.e., have Teague’s would him to allow testimony already presented “duplicated” facts, certain regarding disputed this evidence None of that at presumably have admitted would shows that hearing. This evidence agent’s point in the conversation some unwavering desire an Teague maintained figured out parking lot he Patterson and that he testify throughout $52,500 talking a they were about desire to unequivocally communicated deal, are not sufficient to show marijuana one occasion. more than attorney Teague from precluding that the error initially advised him not His First, if harmless. even testifying was they would make him that testify, but told that he knew at to admit were Then, despite the trial. final decision deal, drug point this was some during the her indications to his continued estab- rest on evidence that conviction must testify, she rested wanted to trial that he that he beyond a reasonable doubt lishes him. consulting Under his case without knowing spectator more than circumstances, Teague’s we find these although testimo- Secondly, Teague’s deal. was violated. facts have been ny regarding certain and Pat- that of the consistent with Prejudice D. terson, of this the circumstances under Estelle, F.2d Wright In v. more testimony would have been case his applied the Fifth Circuit the former merely duplicative. than error harmless Chapman v. California he did defense that Teague’s sole that his claim a defendant’s standard to requisite intent commit not have the to his be reversed because conviction should deny presence at He his crime. did testify violated. Our right to had been agent and scene, deny that nor present in case did the record review of talking about actually Patterson were government leads us conclude to he didn’t defense was that drug deal. His beyond a reasonable prove to has failed happening despite until it was too convince them what was their realize desire to late, nothing stand, him to that there was take the their strategy and best there, and that he had no inten- do sit be to remain silent. but We are confident that case, In helping Patterson. such place daily, such discussions take and that very point of a trial is to many instances the defendants come to “[w]here an individual was in- determine whether the conclusion that should their follow activity, in criminal advice, volved attorney’s personally and decide not must the individual himself be considered right testify. to exercise their to We hold prime importance.” United States when, only despite any efforts de- Walker, (5th Cir.1985). This 772 F.2d 1172 fense counsel to convince the defendant case, especially present true in the where is silent, strategy that the best tois remain Teague’s intent was regarding the evidence personally the defendant does not waive ambiguous agent testified best. right testify to and defense counsel in ar- spoke only that he with Patterson fails to allow the defendant to take the deal, only thus could offer ranging the and stand, right testify the defendant’s testimony regarding his observations of been violated. Accord United States v. parking lot. Teague in the restaurant Curtis, (7th Cir.1984). 742 F.2d testified that said While the emphasize We also that the decision as to intentionally things that indicated he was whether a defendant waived his or her deal, involving himself in the Patterson tes- right testify depend particu- will didn’t what was tified know See, e.g., lar circumstances of each case. agreed help him in going on and had not Lane, (Hold- Rogers-Bey v. 896 F.2d at 283 position any way. No one was a better ing that when counsel’s advice not to testi- explain discrepancies in the evi- these fy personal- and defendant reasonable Teag- Teague’s than dence about behavior advice, ly chose to follow the defendant’s that, say having ue himself. We cannot violated.); right testify was not given opportunity to observe been Curtis, (Holding 742 F.2d at States v. stand, willing to take the Teague was persisted that when defendant in desire to candor, demeanor, and the judge planned perjured testify, but to offer testi- inten- plausibility explanation of his of his mony, right testify defendant’s was not being with Patter- tions and motivations failed to allow him violated question, day on the a reasonable son stand.). to take the acquitted Teague of jury could not have REVERSED AND REMANDED. weapons charge, or either Teag- The district court’s denial both. therefore

ue’s motion for a new must RONEY, Judge, Senior Circuit REVERSED, and this case REMAND- dissenting: proceedings consistent with ED for further from the decision respectfully I dissent opinion. reversed must be be- that this conviction did not cause defendant CONCLUSION right testify, had a Of course recognizing that criminal defendants to call witnesses and he had just as that is have a constitutional A any other relevant evidence. present nature, personal a fundamental and has numerous constitu- criminal defendant the circumstances of this case that under rights in the defense of process tional due Teague’s defendant charge. But counsel criminal violated, that whenever a we do not hold protect- responsibility charged with a desire to expresses defendant making the decision rights, and so, ing these the defendant’s does not do exercised. they should be as to whether Nothing in our testify has been violated. the defendant only thing unique about prohibit at- The is intended to opinion he does not have to a is that explaining perils the of testi- as witness torneys from attempting testify. their clients and fying to

762 accept reject a defendant the first instance to the decision as to whether

If put any court-appointed representation. relevant testify or on other Faretta should 806, 422 general California, not fall within the U.S. 95 S.Ct. evidence does tactics, however, (1975). it L.Ed.2d 562 If trial is 45 he de- definition of accept attorney, trial tactics. cides to an hard to see what defen- developed necessarily delegated important dant has very reason there has The attorney making authority need for profession of trial is the decision to his attor- represent ney. scope delegation of the persons in trial tactics to The does trained knowledge importance not turn on the of the deci- people who do not have attorney frequently makes themselves. sion—the defend affecting judgments very life of the of the one Trial tactics are the office question The here is defendant. twofold: representation of the de- charged with the position judge in who is a better of the case. presentation fendant and the position strategy and who is a better himself, represents well If the defendant to ensure the best interests of the defen- decisions, but good, he can make these history dant.3 This court’s is filled with attorney, then represented by if an he is recognition of the value of an attor- tough attorney must make the deci- ney. seriously No one could contend question concerning sions trial tactics. The position that a defendant is a better should can of whether a defendant strategy attorney. dictate trial than his appropriately single addressed as a not be Moreover, court-appointed attorney a piece of evidence item of evidence. Each society duty owes a to see that his A affects the other. defendant’s possible given client is the best require complete adjustment in the a attorney within the law. No could dis- turn that deci- tactics of the defense. To charge duty yield if he this must to the absolutely in sion over to the defendant personal client. demands many would remove from counsel the cases 3The same cannot be said for the decision to strategy defense. entire of the plead guilty guilty goes or not decision that —a public clearly The shows that the record very deny existence of a trial. To proper, professional, re- defender made control over this decision could be defendant denying the defendant a tantamount trial. sponsible deciding decision in Here, course, there is a trial and the decision request should not She took his attorney goes merely strategy. witness, seriously, him out as a tried The to waive a defendant’s decision hurt, help not his case. concluded would part is viewed as of trial tactics in more Comment, than a dozen decisions. Due Process nothing in this record to reflect There is . v. Counsel’s Unilateral Waiver Defense perfectly not a sound deci- that this was Right Testify, Hastings Const. Defendant’s contrary, sup- the evidence sion. On the (1976). L.Q. ports objective decision that an my judgment, the district court made by taking would indeed hurt case his own necessary in a inquiry the exact case the stand. kind: counsel ineffective for hav- I would affirm the trial court’s denial of the defendant on the ing put failed to reasoning special trial on the of the new fully supports The record the deci- stand. ly concurring opinion joined which I judicial system not. The that she was sion Estelle, Wright v. 572 F.2d 1072-73 enough experience to know has now (5th Cir.), cert. denied lawyer let the defendant testi- that had the (1978), excerpted 58 L.Ed.2d 680 phase argument litiga- on this fy, the as follows: puts would be counsel who question prejudicial

The real in this case is that is known will be not evidence personal is whether the a defendant ineffective. foreseeable rather, right; it of this decision is that now numer- or fundamental involves result authority argue proper allocation of convicted defendants will be- ous permitted his client. should have to testi- tween the The or she been defendant, course, having properly authority fy, been tain, by personally. the defendant As- Matthews, waived Walter Robert L. McCorkle, suming the correctness of the decision that Mercer, George III, A. Al- J. testify, the defendant should not retrials Sadler, Stell, bert and L. Scott Indv. result, will be destined for but one respective capacities and in their prosecution’s being strengthened evidence County, Commissioners of Chatham by testimony, the defendant’s own absent Georgia, Defendants-Appellants. intervening might circumstances which No. 89-8267. prosecution make the more difficult at the goes saying Appeals, new trial. It States Court of without that at Eleventh the second the defendant could Circuit. not be compelled testify, suddenly should he Aug. 1990. realize that his counsel was indeed correct. Rehearing Denied Oct. The defendant’s right to decide whether source, testify, is in whatever its clear conflict with the constitutional to be

represented by Having counsel. chosen to counsel, represented by defendant has

delegated to counsel his to run the decisions, make tactical and determine presented evidence

what should be

jury. just

This Circuit has had Conference of

judges representative lawyers with a

single addressing pro- theme the need for attorneys.

fessionalism in the conduct of system struggles concept,

As the with this counterproductive

it is to reverse the result

of a trial where the trial has con- exemplary professional in an

ducted herself

way.

I concur in the other decisions case, in this and would affirm the Court

convictions. MERCER, Tioran,

Kenneth Tom David

Tootle, Koraski, pre-trial de Edward Jail, County

tainees Chatham

Indv. and on behalf of all others sim situated,

ilarly Plaintiffs-Appellees, MITCHELL, Indv. and in his ca

Walter County,

pacity as Sheriff Chatham Simms,

Ga., Luke Indv. and his ca

pacity as Chief Jailer of Chatham Jail; Coleman,

County J. Tom Willie

Brown, Downing, Frank O. Cleve Foun

Case Details

Case Name: United States v. Donald Teague

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Aug 8, 1990

Citation: 908 F.2d 752

Docket Number: 89-8181

Court Abbreviation: 11th Cir.