United States v. Donald Teague

refugees have demonstrated sub- that the on the APA likelihood of success

stantial

claim. CONCLUSION

C. Haitians class of interdict-

HRC and the high

ed seas can avail themselves of (1) they satisfy

judicial because: review 702; (2) in 5

standard set out U.S.C. §

government officials’ actions are reviewa- 704; (3) under 5 U.S.C.

ble §

government officials’ actions do not come provisions

under the exclusion of 5 U.S.C. 701(a). Thus, provides the APA HRC

§ judicial a cause of action to seek re- ranking govern-

view of the actions low duty charged

ment officials with the screening

properly Haitian interdictees. America,

UNITED STATES

Plaintiff-Appellee, TEAGUE, Defendant-Appellant.

Donald

No. 89-8181. Appeals,

United States Court of

Eleventh Circuit. 26, 1992.

Feb. Jones, Morrison, & Morrison

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

Gerrilyn Asst. U.S. Ga., plaintiff-appellee. for FAY, TJOFLAT, Judge, Before Chief ANDERSON, HATCHETT, KRAVITCH, EDMONDSON, COX, and BIRCH **, DUBINA, Judges,* and CLARK Circuit Judge. Senior Circuit FAY, Judge: Circuit Defendant Donald was convicted attempting possess marijuana with 841(a)(1) distribute, 21 U.S.C. intent to §§ a firearm carrying crime, 924(c). drug trafficking 18 U.S.C. § court’s denial of appealed He the district trial, arguing new his motion for a right to testi was denied his constitutional him as a fy his counsel did not call because panel A divided of this witness at his trial. agreed Teague’s right to court violated, and reversed. United had been (11th 908 F.2d 752 Cir. Teague, States v. 1990). judges of this majority A regular court in active service voted by this court en banc. this case be reheard Teague, 932 F.2d 899 States v. United (on rehearing (11th Cir.1991) petition for banc).1 suggestion rehearing en judgment rehearing, we AFFIRM the On court. of the district

BACKGROUND August that in The record indicates Drug En- Augustine, Donald an undercover (DEA) agent, ar- forcement Administration ranged seventy-five pounds of mari- to sell * ** Johnson, Judge Judge Thomas A. Clark has Senior U.S. Circuit who was a Senior U.S. Circuit pursuant participate in this decision elected to member of the en banc court which heard oral , 46(c). § to 28 U.S.C. argument in this took senior status Oct. participate panel’s opin- and therefore did not in this previous 1. This order vacated the Teague, decision. ion. United States v. Cir.1991). 932 F.2d 899 defense, juana to Kenneth Patterson. Patterson for the Patterson had removed the $35,000 payment handgun bag make an initial placed was to it on the $17,500 payment days they a few seat parking and a final before entered the lot. Augustine later. then invited Patterson to accom- pany inspect him to his car to marijua- time, Teague At Donald work- Augustine na. further testified that Pat- on the renovation of ing for Patterson Pat- Teague terson and they discussed how in terson’s mother’s home Atlanta. On the marijuana would transfer the Augus- from August 17, morning of Patterson and tine’s car got to the truck. Patterson out Teague trips together away made several Augustine car, of the truck to follow to his trip, they from the house. On the first leaving handgun Augus- on the seat. bought went to a hardware store and then gave signal, tine then a and Patterson and shop. They beer at a bait later made a Teague were arrested. trip shop buy second to the bait ice. returning trip, After from the second A grand jury Pat- federal indicted Patterson Teague accompany terson him Teague charges asked on and conspiring trip, possess marijuana a third and the two drove off in Pat- distribute, with intent to Teague 841(a)(1) terson’s truck. When asked where U.S.C. and attempting §§ they going, they possess were Patterson said marijuana were with intent to distrib- ute, going id., “to check out carrying some herbal.” and during a firearm drug trafficking crime, commission of a Teague Patterson and drove to the res- 924(c).2 U.S.C. Patterson entered into a § parking taurant lot where Patterson had plea agreement, Teague proceeded agreed Augustine. to meet with Patterson trial, represented by Stephanie Kearns, Di- got spoke Augus- out of the truck and with rector the Federal Public Defender Pro- Teague tine while remained in the truck. gram for the Georgia. Northern District of Augustine was, Teague When asked who 28, 1988, On November after two-day a partner. Patterson identified him as trial, jury' Teague convicted of the at- got Patterson then in back cab of the tempt possess marijuana with intent to truck, Augustine while remained outside charges, distribute and the firearm but ac- and through talked to the two men quitted him conspiracy charge. driver’s side Augustine window. asked Teague part- he was Patterson’s Teague Then on December filed ner, Teague responded and affirmatively. claiming a motion for new that he had Augustine expressed also some concern been denied his constitutional to testi- about ability Patterson’s to obtain the fy addi- at trial on his own behalf. The district $17,500 tional in days. Teague a few evidentiary hearing then court held an on this Augustine told worry, not to February Patterson motion on 1989. trustworthy. evidentiary hearing, At Teague’s Augustine When asked to money Teague see the counsel testified that had made his agreed bring, Patterson had prior Patterson desire to known to her to trial. opened bag reason, him envelopes handed For that she conducted a mock containing money. Augustine testified direct and cross-examination with opened bag when Patterson in during her office the week before trial. envelopes remove the he also removed a part Counsel testified that it was of her handgun bag put it on practice normal to discuss her clients seat Teague. between himself and they How- whether would and that she ever, Patterson, according to who probably explained testified at this time 924(c) provides crime, pertinent part: U.S.C. trafficking imprison- § in be sentenced to (c)(1) Whoever, during years.... ment for five and in relation to any drug (2) subsection, trafficking crime of purposes violence or For of this prosecuted crime ... for which he "drug trafficking any term crime" means felo- States, a court of the United firearm, shall, uses or carries a ny punishable under the Controlled Sub- punishment in addition to the (21 seq.)_ stances Act U.S.C. et provided drug for such crime of violence or ultimately testimony, pulling on counsel’s sleeve and he would

that whether true,” According asking to coun- whispering, “That’s not would be his decision. maintaining his sel, difficulty Teague had to tell going he to have a chance when was practice; cried composure time, story. his side of the At that questions asking him while she was conflicting testimony did not think the rush to answer before frequently gun significant, and told about the question. Counsel then she finished worry Teague not to about it. The opinion Teague that her it would advised testified, Patterson without rested after testify. Although he did not be better Teague. testimony perceive him as jury would she felt the point At some after the defense rested sincere,” “truthful, very she was open, and Teague closing arguments, but before carefully not listen to he would afraid that again' testify, asked when he would being therefore questions asked and again counsel discussed it with him.3 Dur- prosecu- manipulated easily could be conversation, Teague ing that she felt that However, no tion on cross-examination. just letting her that he was was Teague would final decision on whether know. willing necessary. According if testify, to that time. Counsel reached at was intentionally Teague concerned about they left was testified that if question open testimony gun. until it was clear Patter- Patterson’s about testifying Teague’s in de- son would be him it Counsel testified that she told that felt that if Patterson testified fense. She necessary not for him to be- was Teague to there would be little reason for agent Augustine had contradicted cause testify. gun. testimony about Patterson’s Teague persist, did not and counsel testi- During Teague several times fied that at the time she rested the defense testifying. he would be asked counsel when case, point, Teague At because it was clear that she felt that had assented to that testifying Patterson would be for the de- put him on the stand. the decision not to fense, Teague she told to wait and see reopen the defense No motion was made what Patterson said. Patterson testified permit Teague testify. case to Teague that was not involved in the deal Closing arguments were made the next Teague and that he did not tell about the deliberate, day, jury ulti- retired quantity of “herbal” or the amount of mon- Teague conspiracy, mately acquitting Patterson, ey According to he involved. convicting attempt possess him of Teague accompany pro- him wanted as to distribute and marijuana with intent Augustine Teague he told that tection and carrying drug traffick- a firearm partner only his because he afraid was was ing this crime. Sometime after verdict was Augustine would back out he knew that rendered, however, Teague began call someone who was not involved the deal night. He his counsel at home late at was present. further testified was Patterson repeatedly very distressed and asked her saying than that Patterson that other was get he would a chance to tell his side when good money Teague speak for the did not story. very of the then Counsel became However, Augustine. Patterson also concerned that she not have made gun testified that he his out of the took Teague clear to that the choice of whether bag put it on the seat them between him, her, testify belonged and for lot, long they parking at the before arrived the motion for new Teague so must that reason she filed have been aware it. Teague very was concerned about last trial.4 motion, initially requested

3. Counsel testified that this conversa- Ms. Kearns Teague tion was at the end of the defense but later appointed represent other counsel be very possibly said that it could have been after on the motion for new trial. The court then the defense rested. The district court found represent Teag- appointed William Morrison to that this conversation occurred after the defense ue. rested. evidentiary gave she to her client Teague testified at the ... that does not also He hearing persuade on his motion for new trial. the court that counsel’s decision discussing remembered because the ineffective” reasons she testify, and that she whether he would gave advising him not to were testify, although him not he advised good, giv- “especially when the advice was could not remember if she told him the following en careful assessment of the why. reason He also testified that counsel potential client as a witness.” The district him never told that she would not allow court also found that “the evidence ad- him to hearing duced at the failed to show Teague failing prejudiced by to testi- Then, request, Teague the court’s fy” testimony because much would i.e., gave happened, his version what duplicated have that of Patterson or the he have testified to had he what agent, DEA and at best “would have assist- Teague called to the stand. testified been proving ed him in what did not know thought that he that the third time he and advance, buy not once he arrived on the scene.” Patterson went out it was to a drill bit Teague got acquitted needed. in As conspiracy When of the truck, Patterson told him that he need- charge, attempt but convicted stop ed to to “check on some herbal.” charges, firearms the court reasoned that They pulled parking into the restaurant lot greatly this evidence would not have aided if agent and the asked Patterson he had his defense. money. responded affirma-

the Patterson tively, agent bag handed the for the DISCUSSION said, it, agent agent to count “The Teague challenges both his convictions Teague stuff is in the car.” testified that and the denial of his motion for new trial. mentioned, marijuana was never and that First, Teague argues that the evidence was although he knew Patterson smoked mari- support insufficient to convictions for at- juana, he did know what Patterson tempted possession marijuana of with in- Teague meant “herbal.” further testi- tent to distribute and for use of a firearm agent fied that when the asked Patterson during drug of a the commission traffick- partner, Teague just was his nod- Further, ing Teague argues crime. that ded “like his head hello” and never said granted the district court should have his anything. gun Patterson then took the out motion for new trial because his to seat, bag put got of the it on the out of counsel rested was violated when truck, way and walked half about calling him the defense case without as a parking across the lot where he was arrest- witness, despite repeated requests his ed. testify. evidentiary hearing, After the the district Teag- denying court issued a detailed order Sufficiency the Evidence ue’s motion for new trial. The court found Teague argues that the evidence that “the evidence to show that the fail[ed] presented at trial was insufficient to con will was Defendant’s ‘overborne’ his attempt possess vict him either of mari counsel. The Defendant was advised of his juana with intent to distribute or of use of testify, was advised that should drug trafficking a firearm a crime. right, pro- not exercise that and did not original court panel of this reviewed The court therefore found no test.” viola- presented on both of these Teague’s right evidence tion of The dis- support charges and found it sufficient to although trict court also noted that “trial Teag genuine jury’s counsel does have some reserva- verdict. United States v. (11th Cir.1990). point ue, concerning tions at this the advice We likely grant a motion 5. The district court also stated that knew that the “[w]hile court specific reopen beginning arguments there was no evidence adduced on this prior Kearns, point, the court is confident that Ms. a of counsel.” very experienced attorney criminal defense ... that tution, noted Supreme Court of this the discussion reinstate agree, and provisions in several opinion as “has sources panel original in the claim at at Id. court. opinion of this Constitution.” process the due clause first cited The Court Testify Right to Amendment, stating that of the Fourteenth heard, that his attor is so essential argues right to which be also “the adversary system of his constitutional him in an ney deprived process to due she rested only by behalf when testify in his own vindicated adjudication, [can] calling him to the case without opportunity an affording a defendant stand, repeated his indications despite n. at 51 Id. the factfinder.” before re government testify. The he wanted also 8. The Court at n. 107 S.Ct. his Teague waived sponds concurring opinion to Justice Clark’s cited not affirma he did testify either because proposition Georgia for the Ferguson in during his tively assert that secures Amendment Fourteenth testify yet right to of his he knew because defendant criminal “right of a not to attorney’s decision acquiesced in his testifying his silence and between choose a call him as witness. at behalf.” own has Next, defendant It clear that criminal J., concurring). (Clark, testify in his own constitutional compulsory support found Court historically Although at his trial. behalf Amendment, of the Sixth process clause prohibited defendants were criminal in the ac- “[l]ogically included stating that their interest testifying because whose testi- witnesses cused’s to call long view has outcome of favorable to de- is ‘material and mony Indeed, the United abandoned.6 since been himself, testify fense,’ right should is a to recognized has that Supreme Court States Rock, to do so.” it is in his favor he decide pro- for justification is “no there rational (citation 52, at 2709 107 S.Ct. 483 U.S. at testimony the ac- hibiting the sworn recognized Moreover, omitted). the Court may in cused, others be a who above all 422 U.S. California, v. under Faretta case,” prosecution’s meet position to (1975), 2525, 562 806, 45 L.Ed.2d 95 S.Ct. 570, 582, 365 U.S. 81 Georgia, v. Ferguson right of includes Amendment the Sixth (1961), 756, 763, 5 783 L.Ed.2d S.Ct. defen- self-representation, “[a] accepted that an ac- is ... now “[i]t his own de- opportunity to conduct dant’s testify on his own right ... to cused has incomplete if is by calling witnesses fense 422 California, U.S. Faretta behalf.” v. himself as a witness.” may present not 15, 2525, 806, 15, 2533 n. n. 95 45 819 S.Ct. 52, Rock, 107 S.Ct. at 2709. 483 U.S. at (1975). L.Ed.2d 562 right to that the Lastly, the Court found right stature of this The constitutional corollary necessary to the testify “is also a Supreme by the expressly recognized against com- guarantee Fifth Amendment’s 44, Arkansas, 483 U.S. in v. Court Rock With this discus- pelled testimony.” Id. 2704, (1987). 37 97 L.Ed.2d 107 S.Ct. any that a sion, put rest doubt to the Court Rock, whether “a the Court considered has a constitutional criminal defendant right testify to be defendant’s criminal testify in his own defense. right to excludes her by a state rule that restricted However, right is not unlimited. 53, testimony.” at Id. 107 posthypnosis clearly testify example, right to For matter, the preliminary at 2709. As a 5.Ct. perju right to commit not include the does development of the Court discussed the Whiteside, 157, 106 475 U.S. ry. Nix v. right See testify. Although (1986). Neverthe- 123 S.Ct. 89 L.Ed.2d explicitly stated in the Consti- testify is not Comment, Dawson, (1990); recognition Due L.Rev. 809 Seth of the 6. For an historical overview Timothy testify, generally P. Unilateral see Waiver Process v. Counsel’s Defense O’Neill, Vindicating Hastings Right Testify, Constitu- 3 Defendant’s Defendant’s Right Testify at Criminal Trial: The tional Const.L.Q. 517 Waiver, 51 Need An U.Pitt. On-the-Record

1531 However, less, Rock, attorney. in the- in Supreme Court stated Court Rock em as the phasized that the right to testi “is one of “restrictions of a defendant’s rights process that ‘are essential to due arbitrary disproportionate fy may not be ” adversary process,’ of law in a they designed are fair 483 purposes to the 55-56, (quoting U.S. at 107 S.Ct. at 2708 at Far at 107 S.Ct. serve.” U.S. etta, 422 U.S. at 819 n. 95 S.Ct. at 2711-12; Mississippi, Chambers cf. 15), n. is and that it more funda 284, 295, 302, 1038, 1045, 93 S.Ct. “[e]ven U.S. personal mental ato defense than the (1973) (The defen 35 L.Ed.2d self-representation,” at id. 107 S.Ct. present in dant’s witnesses his own Moreover, at 2709. noted Court subject legitimate to other inter defense proceed has numerous occasions ... “[o]n process trial such as ests criminal premise ed on the that the proce the established rules of evidence and one’s in own behalf defense to a crimi dure.) charge nal is a constitution fundamental bar, however, Teague In the case at 10, 107 right.” al Id. at 53 n. S.Ct. prevented testify- claims that he was added). (emphasis Perhaps n. 10 the most court, ing, by government or the telling of these occasions cited the Court lawyer. We are thus called own Barnes, 745, 751, is Jones v. upon to determine whether defense 3308, 3312, (1983), empowered to waive defendant’s which the Court stated in dicta that “the authority accused has the to make ultimate possess essentially Criminal defendants regarding certain fundamental decisions categories rights: two of constitutional plead guilty, as to whether to coun- those which waivable jury, testify waive in his or her own behalf, sel on the defendant’s and those appeal.” (Emphasis behalf, or take an add which are considered “fundamental” and ed.) Thus, Rock, Supreme Court has defendant, personal only by waivable clearly strongly indicated that the con Generally defendant. included in the for- stitutional should treated primarily mer are matters which involve as fundamental. strategy Henry and tactics. See Although Supreme has not Court ex Mississippi, 379 U.S. question, pressly addressed this this is not (1965). Examples L.Ed.2d 408 of such mat- the first time it has come this court. before ters are what evidence should be intro- Estelle, 1071 Wright In v. 572 F.2d duced, made, stipulations what be should Cir.) (en banc), denied, 439 U.S. cert. raised, objections should what be and what (1078), 99 58 L.Ed.2d 680 the S.Ct. pre-trial motions should filed. 1 be See presented former Fifth was Circuit Justice, Standards Criminal Standard the issue of whether a defendant has a (2d 1980). Examples 4-5.2 comment ed. right testify. During fundamental to only fundamental decisions the de- which trial, Wright’s a conflict arose between empowered entry fendant is to waive are of Wright court-appointed and Alabama, guilty plea, Boykin a v. Wright testify in his about whether (1969), 89 23 L.Ed.2d 274 S.Ct. own defense. The lead defense counsel jury waiver of a Adams United longer repre Wright told that he would no McCann, rel. 277- States ex U.S. testify. The Wright sent him if elected to 236, 240-41, 87 L.Ed. 268 plurality panel opinion which affirmed the (1942), pursue appeal, and whether to an a deciding assumed that there was without Noia, 391, 439, Fay see U.S. right constitutional and fundamental to tes 822, 848, tify, found that in that case the error but Rock, Supreme In the Court did not need the was harmless because evidence was right Estelle, to decide whether the constitutional overwhelming. Wright v. testify character, (5th Cir.1977) (panel opinion). Judges to fundamental defendant, Gee, personal Clark, Hill Thornberry, Roney, and therefore to the or concurrence, by special arguing whether it could be waived the defense filed a trial, defense counsel moved to the Scott’s regarding whether defen- decision give the case but would not strategic and essentially withdraw testify will dant request for this to the trial the reasons delegated counsel:- to defense best The court court. assumed delegation does not turn scope The to but because Scott desired of the decision —the importance on the keep him off attorney intended to judgments makes af- attorney frequently motion, ruling on this Rather than stand. life of the defendant. fecting very pro- either gave Scott a choice: the court who is in a question here is twofold: The right relinquish the ceed with strategy judge to position better pro se. This court testify, proceed or to to ensure the position in better who is right development of the reviewed defendant. interests of the best now a testify and concluded that (Thornberry, Wright, F.2d at 1073 recognized fundamental constitutional Hill, JJ., Clark, Gee, specially Roney, & defendant, which can- right, personal to concurring). concurrence distin- The counsel. This waived plead guished the decision on whether judge had then found that the trial court guilty guilty or not from the decision to choose improperly the defendant forced stating that the decision testify, rights, right between two constitutional “goes very exist- plead to the on what to testify, and to counsel deny the defendant ence of a trial. To conviction therefore vacated defendant’s could be tanta- control over this decision trial. and remanded for new denying defendant a trial. mount Here, course, is a trial and the there reaffirm that a criminal We now attorney goes merely decision made constitution defendant has a fundamental Id. at 1073 n. 3. strategy.” her his or own behalf al personal to defen at trial. This Godbold, by Judges Judge joined by the dant and cannot be waived either eloquent Goldberg Tjoflat, filed an dis- defense counsel. trial court arguing is a sent that can- fundamental constitutional reasoning in Supreme Under the Court’s by defense counsel. not be waived Rock, guar- testify essentially making the choice on whether to testi- choose -.ultimately antees rep- fy, just as the choice on whether to Supreme whether or not himself, the defendant elects resent testify is “a stated that the Court participant whether to become an active Amend- necessary corollary to the Fifth proceeding that affects his life and compelled guarantee against ment’s testi- action, liberty inject and to his own voice Rock, mony.” 107 S.Ct. at U.S. personality process into the to the from Harris quoted 2709. The Court then system permits. extent the York, 222, 225, v. New 401 91 S.Ct. U.S. (1971):

643, 645, “Every 1 crimi- 28 L.Ed.2d privileged is in his deny right to nal defendant ... To a defendant the defense, A story or to refuse to do so.” tell his from the stand dehumanizes own justice. clearly the of I cannot cannot be com- administration criminal defendant accept jury pelled testify by a decision that allows a defense counsel who imprisonment condemn to or a de- in the best death believes it would be defendant’s speak, only logi- It fendant who desires to without interest to take the stand. cal, having Supreme recognized, ever heard the sound of his voice. as the Court has A the reverse also be true: criminal (Godbold, J., dissenting). Id. at 1078 compelled defendant cannot be to remain recently, question More was ad- silent defense counsel. of this court in United panel dressed Scott, (11th Cir.1990) v. States 909 F.2d 488 The decision whether a criminal Johnson, (Fay Judges, Circuit Gib- defendant should take the witness stand son, Judge Eighth Senior unquestionably Circuit for the his own trial has tremen sitting Nevertheless, by designation). During strategic importance. Circuit dous' immedi- beyond far the more ramifications involves a decision that such mere fact the is, acquittal. It obtaining an goal of mandate ate strategy does not itself all, day defense court. ultimately rest with the after decision the defendant’s place in his does conclusion to take stand own Nor our The decision the counsel.7 with the defense, plead in conflict not- right to like the decision pri- bears counsel proceed provides Defense guilty to counsel. advising the defen- responsibility for mary directly to opportunity an with defendant testify, testify or not to his charges against dant him. “The meet choice, of each implications strategic of the defendant’s or unwisdom wisdom defendant ultimately for the it is and that right to make not his choice does diminish crucial This advice is decide.8 himself to J., (Godbold, Wright, F.2d at 1079 it.” no effective waiver can be there because exercising dissenting). By his constitution- right unless constitutional a fundamental counsel, a to the assistance al relinquishment is an “intentional there relinquish not does defendant privi- right or of a known abandonment representation. parameters of that set the Zerbst, v. Johnson lege.” impri- “to Any conclusion would be other 82 L.Ed. 464, 58 S.Ct. privileges and call it man in his son a Moreover, added). (1938) (emphasis 280, 63 Adams, 317 U.S. at Constitution.” be unwise counsel believes at 242. may, testify, counsel for the defendant is con- note that our conclusion We also should, the client indeed advise generally accepted practice sistent with testify.9 strongest possible terms example, the American For within the bar. choice of can then make the defendant for Criminal Bar Association’s Standards the advice to take stand whether provide: Justice competent counsel. relating (a) decisions Certain to remember important It ultimately for the of the case conduct are as an advo defense counsel serves while ultimately for accused and others client, is the the client who for the it is cate which decisions counsel. The defense. See of his or her own master full after made accused are to be 1436, 1441 Kemp, F.2d Mulligan are: with counsel consultation Cir.1985) (11th (Trial only “is still enter; (i) plea to what and not the an assistant to the defendant trial; and jury (ii) to waive whether denied, defense.”), cert. master her testify in his or (iii) L.Ed.2d 529 U.S. own behalf. Con (1987); Model Rules of Professional Stan- Criminal Justice 1 Standards When an individ rule 1.2 & comment. duct 1980) (emphasis add- 4-5.2(a) (2d ed. conduct, the dard accused of criminal stands ual provision commentary to this ed).10 The story has to tell his side of choice true, Cir. Wagner, jury States to waive 7. If that were decision 1987). logically with defense coun- trial would sel, also rest strategy at least as as it involves defense why it good reasons There are tactical the defendant much as the decision whether testify in some for the defendant not be best However, Supreme has Court will might examples be if the Some circumstances. jury clearly trial in a stated that the to a missing provide of might evidence defendant by defense case cannot waived criminal cross-examination, if on the crime elements of States ex rel. Adams v. United counsel. by prejudiced revelation might be the defendant 236, 277-78, McCann, 269, 240- 317 U.S. 63 S.Ct. convictions, might prosecutor prior if the or of 41, (1942). L.Ed. 268 using prior a inconsist- impeach defendant the ent statement. inappropriate to 8. We believe that it would be 668, Washington, require court to this choice with 466 U.S. the trial discuss In Strickland 10. (1984) 2052, 2064, requirement would un- L.Ed.2d 674 defendant. Such a the omitted), Supreme attorney-client (citation Court noted necessarily rela- the intrude into the practice as reflected unintentionally “[prevailing norms of tionship influence the and could the standards Bar Association See United American defendant in his or choice. her trial, deprive the defendant of fair fundamental of the “because states that decisions, result is reliable. so crucial trial whose of these three nature fate, the accused must to the accused’s 2064. at 104 S.Ct. at Id. commentary. Id. decisions.” make the requires that prong first of this test 1.2(a) American Bar Further, of the Rule performance counsel’s defendant show that Rules of Professional Model Association’s objective of reason- an standard “fell below states that: Conduct at 104 S.Ct. at ableness.” Id. (a) by a client’s lawyer A abide shall of claims a violation Where the defendant concerning objectives decisions counsel, the testify by defense and shall consult with representation ... is that the action or essence of the claim by they the means which the client as to deprived the defen- attorney of the inaction In a criminal pursued.... are to be ability to dant of the choose whether by lawyer shall abide In other testify in his own behalf. decision, client’s consultation after words, protecting the defendant’s by not entered, plea lawyer, as to a to be perform- testify, defense counsel’s right to jury trial and whether to waive minimum, fell the constitutional ance below client will prong of the thereby violating the first Therefore, added.) our decision (Emphasis example, if test. For defense Strickland responsibility places greater no on defense accept defendant’s refused to counsel already required by the counsel than is call him to testify and would not decision legal profession. ethical standards stand, have acted unethi- counsel would respon prevent defendant from exer- primarily cally it is Because sibility cising defense counsel to advise the his fundamental constitutional coun- testify. Alternatively, of his and there defendant protected, that the is we defendant of the to ensure sel never informed the appropriate vehicle for claims deci- testify, believe the that the ultimate defendant, that the defendant’s belongs to the counsel sion by defense counsel is a claim of professional violated neglected the vital would have under ineffective assistance counsel ensuring that the defen- responsibility of Washington, 466 U.S. Strickland v. protected and that is dant’s knowing of that any waiver circumstances, de- voluntary. Under such Strickland, Supreme Court de- “ not acted ‘within fense counsel has requirements a claim of inef- fined two of attor- range competence demanded fective assistance of counsel: ” cases,’ and the defendant neys in criminal First, the defendant must show reasonably effec- clearly has not received performance counsel’s was deficient. Strickland, tive assistance of counsel. See requires showing This that counsel made (quoting 104 S.Ct. at U.S. errors so serious that counsel was not Richardson, 770- McMann v. functioning guaranteed as the “counsel” 1441, 1448-49, L.Ed.2d 763 71, 90 S.Ct. the defendant the Sixth Amendment. (1970)). Second, the defendant must show that bar, court made performance prejudiced deficient In the case at the district evidentiary hear- requires showing specific findings This after an defense. dis- ing “We defer to the counsel’s errors were so serious as to on this issue.11 However, guides determining court held an like in this case the district what reason- representation by attorney. Teague’s evidentiary hearing able" an motion for new that court’s have the benefit of and we generally 11. This court will claims for entertain hearing, findings in this matter. At that factual only ineffective assistance of counsel on collat- represented new defense usually require eral review because such claims counsel testified. and both and his trial findings evidentiary factual best made in an circumstances, ad- we choose to Under these hearing. 818, Arango, See United States v. F.2d 853 of ineffective assistance dress the claim for (11th Cir.1988); 823 United States v. Soud- counsel at this time. er, Cir.1986). (11th 1539-40

1535 a clear was violated this claim findings of fact absent trict court’s properly as a claim of apply our is framed ineffective ly determination but erroneous assistance of counsel. For the reasons set as to the conduct judgment whether own above, constitutes inef forth we find that defense counsel by these facts determined case, was not in this AF- Wiley counsel.” ineffective fective assistance of (11th judgment 1193 Cir. FIRM the of the district court. F.2d Wainwright, 793 1986). court found that “the The district EDMONDSON, Judge, Circuit that the Defen to show evidence fail[ed] concurring in the result which COX and by his counsel. dant’s was ‘overborne’ will BIRCH, Judges, join: Circuit right to was advised of his The Defendant he not testify, was advised that should case, I concur in the result in this but right, protest.” and did not exercise that disagree today’s with much that is said in the record of the evidentia- Upon review of opinion. court say find ry hearing, cannot that these we I believe a defendant’s clearly ings of fact are erroneous. only right to can be described as a be free Moreover, although time of the at the governmental of interfer- unreasonable hearing clearly had evidentiary See, testifying. e.g., ence with his Rock v. Teague had un misgivings about whether Arkansas, choosing he not to testi derstood that was (1987) (statutory per rule L.Ed.2d 37 sé fy, a review of ineffective assistance excluding hypnotically testimony refreshed per must be made from the counsel claims impermissibly infringes on criminal defen- counsel, taking into ac spective of defense So, testify). dant’s I do not believe they of the case as count all circumstances that defense counsel can violate to counsel at the time were known limited of that when the nature Wainwright, representation. Porter v. correctly understood. No one denied, (11th Cir.1986), cert. 805 F.2d 930 government claims here that the interfered 918, 107 96 L.Ed.2d U.S. sought testify. when clearly Teague’s counsel had ad Therefore, right-to-testify considerations no him that it would be unwise and vised present in this case. him At the unnecessary for question ineffectiveness of On the hearing, evidentiary counsel testified that counsel, defense counsel can be ineffective case, the defense she when she rested be in the constitutional sense counsel does or acceded lieved that had assented testify; the defendant to not call find that to her recommendation. We lawyer think is ineffective performance not counsel’s constitu declining defendant who wished to to call a Because the defendant tionally deficient. the circumstances of testify would turn on prong of has failed to meet the first Strick counsel to be inef- each case. For defense land, Teag we need address whether fective, testimony of defendant’s the value prejudiced in ue’s defense was this case.12 (or acquittal purpose gaining for the sentence) perhaps would have to be a lower CONCLUSION great that no so and obvious reasonable particular lawyer, given the facts of the summary, we hold that a criminal judgment fundamental constitutional would have exercised defendant has a behalf, testimony. exclude defendant’s Consider- on his that this defendant, general, ing imponderables of trials personal to the and that the And, such seem to be rare.1 right cannot be waived defense counsel. cases would among this case is not those rare casés. Where defendant claims that Butler, (11th testify, he runs the risk that if 12. But see Nichols v. 953 F.2d 1550 fendant elects to Cir.1992). disbelieved, of fact conclude that the trier truth.”); testimony opposite is the of his testifying significant legal 1. A defendant's raises Bennett, F.2d United States v. Sharif, him. United risks for See States (11th 1988) (jury may view defendant’s false Cir. (“When Cir.1990) the de- F.2d 1536 efforts lawyer’s tactical nullify all of the dicta, Court, has said in Supreme very fact, mockery make, a of in and my view about suggest that

things that competent a testify may a defendant received right to idea that of a defendant’s nature assistance of inherently unre- by means But, is dicta be incorrect. allowing differently, faced do once will Put court counsel. liable for what a its best deci- and once tactical squarely counsel’s client to override question awith argu- and oral process along briefs with the adversarial thoughts, sions undercuts precise issue. protect on the as ment, attempts to focused are Constitution that the fair trial. ingredient to a the essential a defendant agree that I understand plead to he will how decide personally must lawyer’s constitu defining a defense him, he will whether charges against heavily relies on today’s duty, tional court he will and whether by jury, trial waive worry I about this guidelines. ABA ethical not about are decisions appeal. But these that ethical stan I not believe practice. do materially tactics; different. they are (or define even ought to define or dards is there whether These decisions determine defining) the constitu for much count fight’s judge the fight will a and who to be to effective as apply tional standards But, client decides once outcome. v. of counsel. See Strickland sistance fight and that wishes there is to be 668, 688-89, 104 Washington, 466 U.S. agree lawyer, I represented be (1984); 2052, 2065, 674 80 L.Ed.2d S.Ct. counsel say that defense judges those who 157, 165, Whiteside, 106 475 U.S. Nix v. the client’s desires defer to need not (1986) 993, 123 988, 89 L.Ed.2d waged. See United fight is to be how the (breach does not neces of ethical standard 752, (11th F.2d 908 761 Teague, v. States of Sixth Amend sarily denial constitute J., dissenting), rev’d on Cir.1990) (Roney, counsel); of of assistance guarantee ment (en Cir.1992) (11th 1525 reh’g, 953 F.2d Freed, Stearns, et Arky, v. see also TEW 1071, Estelle, 572 F.2d banc); Wright v. 10573, (S.D.Fla. al., P.A., F.Supp. 1575 655 Clark, (Thornberry, (5th Cir.1978) 1072 Cir.), (11th 1987), F.2d 753 cert. aff'd, 846 JJ., Gee, Hill, specially concur- Roney, & 142, 102 denied, 109 S.Ct. 488 U.S. ring). (1988) disciplinary (attorney L.Ed.2d on trial the last word To allow the client for designed to be basis civil rules not will the client tactics, whether including action); private cause of or create liability client, in testify, is to make himself Paynter, v. Realty Int’l Co. Miami Frank v. effect, lawyer.2 his own See Cir.1988) (violation of code F.2d 348 (6th Cir.1980). Bloom, F.2d responsibility does not con professional of call witnesses to Decisions about which se). negligence per stitute require a tactical quintessentially adding new courts are “forever Federal tempered judgment, trained advocate’s law, temple of constitutional to the as, stories avoiding per- responsibilities his —such way collapsing temples of have a court. testimony an officer jured —as many Doug story too is added.” when one absolutely to decide To allow the client 157, 181, Jeannette, 63 S.Ct. v. 319 U.S. potentially las will the client determining waiver whether defendant's evidence explanatory as substantive statement knowing Eley, pro guilt); counsel/request proceed se is proving United States (11th Cir.1984) (same). Dugger, intelligent); F.2d Horton v. (11th Cir.1990) (defendant must assert 716-17 represent them Defendants have manner). timely self-representation But, rarely wise for one to we it is selves. know the last have word defendant-client did If procedural safeguards do so. And elaborate —to procedures testifying, like surmise about protect only the crim defendant also client elected applicable whenever process See Faretta v. involved. inal trial — are objections. But over counsel's 806, 835, California, thought pursued because have not line (court (1975) make must represented my a defendant who view self-representa dangers of defendant aware of tion); federal Constitu- does not—under Fitzpatrick Wainwright, F.2d (11th Cir.1986) last on tactics. (listing eight tion—have the word factors 1065-67

1537 J., inadequate failing in to ad- (1943)(Jackson, is also circuits 889, 877, L.Ed. 1324 87 “knowing intelligent” re- dissenting part), in and dress concurring part in Arizona, by Judge 384 U.S. Clark quirement issue discussed Miranda v. quoted in 1602, 1654-55, 16 L.Ed.2d 436, 526, 86 S.Ct. in his dissent. J., dissenting). Effec (1966) (Harlan 694 upon majority’s holding, based The the law involves of counsel tive assistance analysis, place the crim- Strickland2 acquittal or lower an help to win yer’s position in of at least co- inal defendant is, “vigorous advocacy of the sentence, that his in those where circumstances Strickland, 466 cause.” defendant’s See the judg- desire to conflicts with 689, include at 2065. To at 104 S.Ct. U.S. lawyer. When that situation is ment of represen as whether ideas—such other scenar- presented, I believe that a Faretta3 guidelines, complied ethical tation with the trial court should io exists. As a result acquittal at do not aim some of which cautionary the Faretta mandated provide compli purposes serve other —burdens defendant, ap- to the instructions ques already complex much an cates too judge the fairness pellate court should of representation. what is effective

tion of proceedings using the same rules of blocking of his lawyer’s if a defense Even existing poSt-Far- developed in the review (leading per testimony is unethical client’s jurisprudence. etta law lawyer), the discipline for the haps to adopting a The rationale for Faretta still be effective representation can yer’s to a analysis opposed waiver type if rea of point of view constitutional from a —as similarity grounded in the methodology believed lawyers could have sonable —is issue; signifi right rights have both the testimony would of the defendant’s for ac right chance to testi cantly self-representation lessened defendant’s The co-exist quittal “reciprocal” rights. or a lower sentence. fy and, hence, reciprocal ing, opposing concurring in the BIECH, Judge, Circuit self-representation is that of result: reciprocal right to the The counsel. guar silent is the to remain join in the result this case concur ju The Amendment. by the Fifth opinion anteed concurring authored reciprocal to such risprudence respect Edmondson. Judge fragile the more rights recognizes that any manner from retreating in Without preeminent rights is the reciprocal Judge Edmondson’s positions stated reciprocal of the right. In the context concurrence, facet another believe that accurately has court right to dis- should be right-to-testify issue pre “is to counsel observed Assuming, arguendo, cussed. self-representa over the eminent in- testify is right to defendant’s criminal attaches automati the former tion because personal and can be fundamental and deed affirmatively to cally and must be waived actors, the by non-governmental violated lost, does ‘not attach while latter required to invoke that should be accused ” Stano until it asserted.’ unless and Hence, [i]s a “waiver” right for it to attach. (11th 1125, 1143 Cir. Dugger, 921 F.2d v. inappropriate on review. analysis is type of (en banc) v. 1991) (quoting Dorman Wain courts con- opinions other circuit Cir.1986), (11th 1358, 1366 wright, 798 F.2d employed the latter fronting this issue have 1616, 951, denied, 107 S.Ct. being 480 U.S. cert. In addition to of review.1 method (1987)). L.Ed.2d 801 by those 94 approach taken inappropriate, the Washington, 104 Edwards, 466 U.S. v. 897 F.2d 445 Strickland United States v. 1.See — U.S. -, (1984). denied, Cir.), 111 S.Ct. 674 80 L.Ed.2d cert. S.Ct. Vose, (1990); Siciliano v. (1st Cir.1987); Bern States v. F.2d United 29 834 loehr, California, 422 U.S. 3. Faretta (8th Cir.1987); United States F.2d (1975). L.Ed.2d 562 Inc., (1st Architects, Systems F.2d 373 denied, Cir.), cert. L.Ed.2d 115 Cir.1982). However, of the one that is as- the invocation preeminent A operative and which currently subordinate serves as a waiver sumed to be Stano, by right. the assertion of the may preeminent be abandoned 921 F.2d at 1143. Id. the subor- Thus, right. self-representation subordinate right “The to entails a by the be invoked indi- right dinate must right counsel, of the to since a waiver to vidual in order attach. “Waiver obviously enjoy defendant cannot both and invocation of right of the to counsel important rights at trial. Because of the self-representation to right the correlative well-recognized benefits associated however.” Marshall matter, simple is no counsel, right preeminent with the to it is Dugger, (11th Cir.1991) v. 374, F.2d 376 925 right in the sense the attaches unless af- unequivocal (requiring a clear and asser- Brown, firmatively waived.” 665 F.2d at pro se right representation tion of the to omitted). (citations examining In 610 vari- knowing intelligent election to and a surrounding right to self- ous issues pursue right). representation, this circuit has had occasion to characterize the relation- several times not, right The subordinate need and can- pro se representation ship and the between it has attached. not, until be waived right Language illuminating to counsel. right to counsel is in force until “While preeminence analysis capturing waived right self-representation does not attach until asserted.” Brown v. rights in tension between these is set forth Wainwright, 665 F.2d 607, (Former opinions 610 5th several of this court.4 The 4. representation. The observations made in those cases which follow are no less dinate former Fifth Circuit stress the reciprocal nent Id. at 1369 that the former L.Ed.2d 801 Dorman v. whereas the latter ha[s] such (11th Cir.1986) cert. tion than to waive other constitutional and until it is asserted. easier to waive one's rights waiver the assistance of counsel. Strozier Cir.1989) ciprocal, constitutionally protected right "knowingly cision in Faretta there has been tension be- representation. The tension exists because the Cir.1989) must tween the Orazio Under the law of this Since the [T]he right) right following order for right). denied, as the right voluntarily to be are v. right right (emphasis reciprocal: right (emphasis Dugger, the other. Newsome, to counsel and the (emphasis Supreme Wainwright, affirmatively (1987): self-representation, cases from this circuit and the to remain silent (citing to counsel and the attache[s] intelligently” elect right right 876 F.2d d[oes] added): added): counsel. to assert one necessitates Court announced its de- Brown, right added): self-representation, to to [i]s 798 F.2d F.2d Circuit, attach, waived automatically not reciprocal preeminent 1508, applicable 665 F.2d at waiving self-representa- attach unless right in the sense (the right a defendant it is much (the 1512 to be lost 997 preemi- to self- the re- to self- nature rights, subor- to the (11th over 610) by se Id. waiver of a waiver insofar as the defendant J.S. waive that excluded. exercise Brown, 665 F.2d at 610-11: must be some n. 12 exclusive waives his exercised considered to be in Rubin, Kravitch, Randall, Tate, not attach until asserted. representation asserted the Chapman v. United mere failure to assert it. trial. Because of the recognized Brown v. to waived, ly U.S. dant mer 5th ed): Gideon v. waiver of the the sense the These two constitutional Even after the defendant has Unlike the While the counsel, right waived. at Williams, JJ.) 25, (5th Cir.1977) (equating obviously right with waiver of ^[*] 92 S.Ct. Cir.1982) (en banc) (emphasis Wainwright, concurrently. Consequently, (Hill, Wainwright, right. see benefits associated with the their right right right right right defendant, right starting point ^[*] e.g.,Argersinger can be waived J., cannot self-representation to waive 2006, application; to counsel is This attaches unless affirmative- to defend dissenting) (joined by force, (emphasis (1963), to States, ^[*] self-representation 665 F.2d counsel, 32 L.Ed.2d 530 represents 372 right and the other enjoy important without appointed rights it is ^[*] U.S. when one pro assertion of added): they both v. preeminent unequivocally since a defen- 607, in counsel): right Hamlin, any express ^[*] se, T.A. defendant's force until cannot be and well- entails a 610 mutually rights part counsel. 83 S.Ct. right right of self- (1972); Clark, ^[*] there (For- right does may add- A.B. pro 407 in at Instructions, Circuit, Jury Pattern pre Eleventh right to counsel is Precisely as the pro (Criminal Cases) reciprocal se Basic Jury eminent to its Instructions remain silent is representation, (1985). The law of this cir- Instruction 2.2 fragile reciprocal, less preeminent to its requires given instruction cuit that this to silence is testify. The Bain, requested. United States it is the preeminent in the sense (5th Cir.1979)(defendant who does F.2d 120 time of arrest that attaches is entitled to instruction that no warning. The ar means of the Miranda inference be drawn from that elec- is advised of the rested individual tion). silent, any and he is warned that remain subsequent The decision and Faretta will, can, against be used thing says clearly opinions applying holding its estab- protected Supreme Court has him. The self-representation right lish that the to holding any prejudicial com right by By qualified by practical constraints. prosecutor to a violation of by the be ment right. guidance analogy, opinions provide fifth amendment these as the defendant’s 609, 615, 380 U.S. 85 California, rights v. corresponding to how the to remain Griffin (1965); 1229, 1233, 14 106 see L.Ed.2d S.Ct. testify and to on one’s own behalf silent 2240, Ohio, 426 96 S.Ct. U.S. Doyle subjected practical to constraints or can be (1976). recently This circuit 49 L.Ed.2d 91 deemed in the actual conduct of abandoned prohibition to a defendant’s applied this minimizing “In the of dis- trials. interest warnings Miranda and before silence after continuity ruptions maintaining at tri- Gonzalez, 921 F.2d trial. States v. United al,” adopted the rule that this circuit has — (11th Cir.), denied, 1530, 1549 U.S. cert. right one’s defense unless the to conduct (1991). -, 112 asserted, timely any election to pro se is preeminent in right The to remain silent is proceed pro is committed to the discre- se continuing and the sense that it is the Chapman, of the trial court. 553 F.2d tion right during pretrial period existing 893; States, at see also Cross v. United trial. and the course of a Cir.1990). Fur- ap circuit has utilized a Faretta This ther, right of the to an effective invocation dealing right remain proach in with to upon a self-representation is conditioned found that the defendant had silent. We unequivocal declaration of the “clear and right his to remain silent and waived Stano, F.2d proceed pro se.” choice to protection prohibition of a of consequent added); Faretta, (emphasis 1143-44 see at silence, by prosecutorial comment on that Thus, at 2541. 95 S.Ct. U.S. asserting right his to as to the issue se, right proceed pro a fundamen- to albeit identity. testifying, prosecu of After right, personal constitutional be- tal and tor allowed to remark on the was then is, (that right not abso- qualified comes a those issues silence of the defendant as to lute) point in time at upon the depending identity. Massey, unrelated to McGahee to invoke undertakes which the defendant (11th Cir.), F.2d cert. de Moreover, right to self- right. nied, inchoate in representation is conditional or L.Ed.2d 199 absent that it remains unattached the sense right preemi- remain silent is a clari- of sufficient an affirmative invocation throughout right nent exists a trial which of timeli- ty and certitude. The framework interrupted by an assertion of the until clarity established ness and considerations recog- right This conclusion is proge- and its Eleventh Circuit Faretta Jury nized in the Eleventh Circuit Pattern suggest subordinate ny that the does Instruction which states: “The law assigned the fun- it is when require prove a Defendant to his inno- —even accorded personal character damental and all; produce any cence or evidence at self-representa- the subordinate testify, you a Defendant elects not qualifications that may subject any way should not consider that in tion— acknowledge conflicts with your inevitable deliberations.” Committee Pattern practical right to a trial court can to remain silent and the ment process. error realities commit reversible constitutional improperly granting request to either the defendant The settled rule is that pro thereby depriving proceed se—and seeking proceed pro se must assert the to counsel—or the individual prior to the commencement to do so by denying proper assertion of the trial; thereafter, any request proceed oneself, represent thereby is committed to the discre- without counsel violating Faretta. Accordingly, trial court. tion of the the constitutional announcement of Cross, analogous 893 F.2d at 1290. The light self-representation in Faretta —in of the subordinate nature as to the timeliness the Court’s silence too, suggests right, that this be sub- pre- question in that case—did not itself appropriate ject qualifications consistent timing of the clude consideration proge- the lessons of and its Faretta circuit, right. invocation of the This there- ny. fore, affirmed the trial court’s denial of a “require[s] This circuit an individual to request entered the proceed pro to se on clearly unequivocally assert the desire day post-Faretta third trial in the case Cross, represent himself.” F.2d at to 611; of Brown. 665 F.2d at see also See right Although self-represen- 1290. the to Cross, (noting 893 F.2d at 1291 n. that personal, tation is fundamental and “trial authority the its to trial court was within required courts are not to divine when a pro- reject request an “eleventh hour” to proceeding pro criminal defendant is se.” i.e., pro ceed made “moments before se— Stano, Rather, 921 F.2d at 1143. the de- beginning opening the statements” —as fendant must make an affirmative asser- Estelle, untimely). Compare Stepp v. right. tion In to assert the of the order Cir.1975) (5th (affirming F.2d 447 Faretta, right self-representation to under discharge court’s of defendant’s two court- a defendant does not need to recite some appointed attorneys upon defendant’s re- hoping open talismanic formula the quest, request where the was made after request. eyes and ears of the court to his beginning examination) dire of voir proceed pro se is Insofar as the desire Brown, with 665 F.2d at 611. concerned, petitioner must do no more short, In decisions that relevant indicate request, orally in than state his either Faretta, right self-repre- even after writing, unambiguously to the court so qualified by sentation remains timeliness person say no can that reasonable requirement the trial which vests court request was not made. deny untimely request with discretion to an Stano, (emphasis 921 F.2d at 1143. omit- proceed pro se. This limitation on the ted) Dorman, (cita- (citing 798 F.2d at 1366 right self-representation exercise omitted)). tions acknowledges judi- the state’s in interests disruption, cial convenience and the risk of decision in this circuit While no recites readily as well as the hazard of too particulars facili- for a re- that are needed tating the exercise of a when such quest unequivocal to constitute a clear and necessarily exercise entails the waiver of right, opinion assertion of the the Stano important fragile— another more explicitly rejects mere the effectiveness of —and Cross, right. we described the constitu- constructive notice to the trial court. Id. at perils requests surrounding pro- tional Furthermore, factually diverse se, ceed pro noting that arising cases in this circuit since Faretta [bjecause self-representation necessarily present examples of factors relevant in entails the waiver the sixth amend- cases of actual notice to the court.5 persistent sufficiently unambiguous, 5. A direct and election satisfies the clear and albeit com See, required promised by subsequent ambiguous minimum actions of a defendant. statements Cross, (statement e.g., event); probably untimely any 893 F.2d at 1291 made to in Strozier Newsome, directly the court that “I want to be allowed to Cir. 998-1000 represent myself through 1989) (request through this whole trial" was directed counsel to the self-repre- cally Ambiguity request parallel in for warrants the institution of exercise, requirements right’s for that diligently pursue or a failure to sentation request held sufficient the initial have been began, I I To conclude as concur in the request, “in rec- grounds for denial today. result reached I court do so a district court ognition of the thin line that Judge reasons stated evaluating in demands must traverse opinion. in Edmondson But if the ma- se, pro proceed knowledge jority is correct about the nature of the exploit litigants can this difficult shrewd testify, approach the court’s by making ambiguous constitutional area properly how that is to asserted is inject claims to error in error self-representation for the reasons have undertaken record_” Cross, explain here. 893 F.2d at into emerges The clear rule that 1290.6 CLARK,

the cases in this circuit is that Judge, Senior Circuit proceed pro se will be deemed abandoned concurring part dissenting part: or unattached unless the defendant affirm- agree majority criminal with right. atively asserts the This is consistent defendant has a constitution- fundamental Be- right’s subordinate character. al on his or her own behalf any cause exercise of the to self- personal to the defen- pre- representation entails a waiver of the dant and cannot be waived his or her ap- eminent courts must however, agree, counsel. I do not that a represent proach a defendant’s election to claim of ineffective assistance of caution, discharging counsel himself with appropriate analyzing the vehicle for the only clearly the desire is where defendant’s alleged of this violation fundamental con- unequivocally expressed. right. and The subor- In analyzing stitutional claims in- right testify logi- volving rights dinate character those constitutional that are sufficient, See, Cross, (defendant’s morning e.g., court on of trial was al- 893 F.2d at 1291 though ambiguity knowing intelligent “I want to allowed to as to and initial statement that remand); myself through required represent character of waiver v. this whole trial” was Orazio (11th Cir.1989) (di- unambiguous, Dugger, sufficiently 876 F.2d 1512 clear and but subse hybrid hearing regarding quent rect statement to the court at comments evidenced a desire for thereby giving ambiguity appointed request representation, counsel’s assertion, for withdrawal is a rise to repeat request sufficient and failure to re- such did not constitute an elec se); quest acquiescence proceed pro after denial and in counsel’s Raulerson v. Wain tion to (11th Cir.) (al subsequent representation wright, un- 808-09 does not obviate 732 F.2d Dorman, original requesting per equivocal request); though nature of initial letter to the court se, (defendant clearly proceed pro by F.2d at followed in-court 798 1366-67 invoked mission to se, right pro request, where he filed was a sufficient invoca motions informed renewal of the se, by proceed pro right, walking the court letter of desire of conduct in tion of the defendant’s defender; public inquiry and for he moved dismissal of out of the courtroom the Faretta right merely by ceasing request equivocal did or effec 966, not abandon to send rendered the either waived), denied, apparently verge tively letters where he was on the cert. 105 Brown, (1984); contempt repeated of court for 665 his letters and motions); Fitzpatrick Wainwright, (although v. F.2d F.2d 611 defendant’s counsel filed a 800 at (11th Cir.1986) (defendant clearly pretrial stating 1064-65 that defendant waived motion counsel, right by signing actually right right asserted waiver of his defendant waived verbally reiterating right self-representation by counsel and his desire be- his virtue of his Edwards, court); cooperation reassert fore United States v. with counsel failure to (11th Cir.1983) (motions by right F.2d filed after counsel informed the court that seeking they pro and the court both the defendant and counsel se had resolved their difficulties James, motion). representation sufficiently right); asserted the See also Jackson v. denied (two (11th Cir.1988) (defendant’s Chapman, F.2d at announcements 839 F.2d himself, by represent to the court defendant of his desire for self- election to when confronted representation "unequivocal[ constituted as- with a choice between self- ]” the trial court Estelle, sertion); Stepp representation proceeding with the assist Cir.1975) (defendant’s request judge attorney who had to with to see fol- ance of an moved trial, concerning morning lowed self-representation conference chambers draw on the of defendant’s right self-representa amounted to sufficient asser- not an invocation of the right). tion). tion of con- denied his Sixth Amendment to coun- personal, courts have fundamental and argument Addressing safe- the state’s employed procedural sel. sistently right, The had waived this waiver. the defendant guard of an on-the-record Supreme treated no differ- stated: testify should be Court a criminal defen- ently. Accordingly, when pointed out that ‘courts in- It has been his or her own dant has not testified presumption dulge every reasonable trial record should re- behalf against waiver’ of fundamental constitu- waiver of his or the defendant’s flect that rights presume tional and that we ‘do not knowing and intelli- her acquiescence of fundamental loss is no such on-the-record gent. As there ordinarily A rights.’ waiver is an inten- case, Teag- I would reverse waiver relinquishment tional or abandonment Moreover, if I even were ue’s conviction. privilege. a known majority that the ineffec- agree with the analysis appro- is tive assistance of Teag- find that priate for this an accused While waive per- rendered deficient ue’s trial counsel counsel, proper whether there is a waiv- prevented formance in that she clearly er should be determined exercising court, fitting and it would be Thus, prejudiced thereby. under ei- appropriate that determination to analysis propose analysis ther the or the appear upon the record.3 employed by majority, I would hold Cochran,4, in Carnley And which also Teague’s conviction should be re- involved the waiver versed and remanded for a new trial. Supreme Court held: Presuming from silent waiver record I.A. show, impermissible. The record must majority correctly concludes that the allegation or there must be and evidence among that class of con- show, that an which accused was offered and, rights stitutional that is fundamental intelligently counsel but and under

therefore, personally must be waived standingly rejected Anything the offer. the defendant. Included in this class of less is not waiver.5 fundamental, personal rights right are the Thus, for a criminal conviction to survive a counsel, represented by to elect to be challenge right based on denial of the right go plead to choose to to trial or counsel, the record must show that guilty, right to decide to be tried right this defendant’s waiver of was know- jury judge.1 Supreme or a The a Court has ing intelligent. right never addressed the waiver of the has, however, It addressed the Supreme The Court has treated other fundamental, person- waiver of these other rights similarly. fundamental constitutional rights. al Its treatment of these other repre- Even a criminal defendant is when rights is instructive. Supreme sented has Court Supreme The Court’s seminal case on determined must that the record show that waiver of a fundamental constitutional the defendant’s waiver of a fundamental Zerbst,2 case, right is In personal, knowing, Johnson v. constitutional alleged the defendant intelligent. significant that his conviction and ex- The most ample was unconstitutional because he Supreme had been of this determination is the 514, 529, 464-65, (footnotes Wingo, 1. See Barker v. 407 U.S. 3. Id. at 58 S.Ct. at 1023 omit- 2182, 2191, (1972); ted) added). (emphasis 33 L.Ed.2d 101 United Joshi, (11th Cir.), States v. - denied, -, cert U.S. 111 S.Ct. Cochran, Carnley 4. 369 U.S. 82 S.Ct. (1990). L.Ed.2d 534 (1962). Zerbst, 2. Johnson v. 82 L.Ed. 1461 Id. at 82 S.Ct. at 890. Boykin responsibility prosecu- v. Alabama6. the entire on

Court’s decision challenged the defendant tion to show that the claimed waiver was conviction, guilty was based on his which knowingly and voluntarily made.9 plea, grounds on the that the record did not If the record does not establish a valid affirmatively validly that he had show waiver defendant’s fundamental con- rights those constitutional necessar- waived rights, prosecution stitutional then the by entry guilty plea, ily waived includ- judge carry the trial have failed to out their ing go to trial and the charge, and the defendant’s conviction Noting require- by jury. trial that “[t]he must be reversed. spread that the prosecution ment prerequisites record the of a valid waiver is majority The correctly acknowledges innovation,”7 no constitutional the Court that the constitutional is a conviction, reversed the defendant’s stat- right personal fundamental to the defen- ing: fails, majority however, dant. The to treat presume We cannot a waiver of these ... as fundamental that it fails to important rights federal from a silent require that the record reflect a valid waiv- record. right. Instead, er of the majority con- facing What is at stake for an accused appropriate cludes that apply it is an imprisonment death or demands the ut- ineffective assistance analysis of counsel capa- most solicitude of courts are which involving claims to testify. This in canvassing ble the matter with the wholly conclusion is unsupported by Su- accused to make sure has a full under- preme authority. Supreme Court The standing plea of what the connotes and Court has not relied on the ineffective as- consequence. of its the judge When dis- analysis protect sistance of counsel crim- charges Junction, he leaves a inal defendants’ fundamental constitutional adequate any record review that rather, rights; protect critically these sought be later [citations omitted] important rights, required the Court has an spin-off collateral forestalls on-the-record waiver fundamental consti- probe proceedings murky that seek to rights. tutional The fundamental memories.8 differently. should be treated no Supreme Court mandated that recognized, As the commentators have courts establish on the record the valid analysis ineffective assistance of counsel rights waiver of those fundamental waived simply protect does not adequately a defen- guilty plea; the Court also noted testify: dant’s fundamental practical advantage of its mandate: Ineffective assistance is not a useful ... subsequent proceed- forecloses collateral appellate recourse for criminal defen- ings. puts dants as it the on onus back the demonstrate, As these cases the Su- attorney why retrospectively to establish preme recognized Court has the need for a testify. his or her client did not In view court trial to establish on the record the imprecise anticipation of counsel’s of rights valid waiver of those constitutional perjury projection winning client or of a personal that are fundamental and to the strategy, trial and the defendant. As the stated in lack of trial Court Barker Wingo: issue, on the the record ineffective assist- ance standard fails to address whether depart holdings do not our [W]e testify the concerning other cases the of defendant’s desire to waiver fun- rights, placed damental in which we have overridden counsel’s decision that he Alabama, 243-44, Boykin (footnotes 6. 395 U.S. S.Ct. 8. Id. at 89 S.Ct. at 1712-13 (1969). omitted) added). (emphasis 23 L.Ed.2d 274 Wingo, 9. Barker v. 407 U.S. at 92 S.Ct. at Id. at 89 S.Ct. at 1712. 7. right testify. to As one com- testify. The defendant tions she should not recognized: right testify by mentator has deprived to provided effective otherwise counsel who procedures only en- not [O]n-the-record assistance. sure the effective waiver of defendants’ rights,

fundamental constitutional prevent post-conviction attorney- also range ‘reasonably ef- the wide Given disputes appellate client and facilitate re- virtually in- and the fective’ assistance view.13 test, for’ surmountable ‘but Strick- rarely yields favorable standard land10 certainty provided by The an on-the-record restrained from for defendants results right testify waiver a defendant’s to Moreover, testifying trial. the Strick- would foreclose a later claim that defen- disregards personal na- analysis land dant that counsel failed to advise of testify fails to right to ture of the right or declined to allow the the defendant’s acknowledge that it is defendant to make the choice as to whether decision to take the stand.11 testify. Unfortunately, majority’s opinion provide certainty; does not for such attempts it majority The to have both rather, opens it the door for an after-the- right ways: acknowledges that swearing fact contest between the defen- testify is a fundamental constitutional dant and counsel the defen- as to whether defendant, personal but it refuses to validly testify. dant waived the applying treat it as such. Rather than analysis to ineffective assistance of counsel Accordingly, I would hold that a criminal claims, such this court should do as defendant’s waiver of his fundamental con- Supreme analogous situ- Court has done un- stitutional valid involving ations other fundamental consti- affirmatively less the trial record shows rights: tutional it should mandate that trial that the defendant knew of this courts on the trial record the valid establish personally intelligently waived waiver of a defendant’s fundamental con- right. proscribe specific I would not testify. stitutional procedure for this on-the-record waiver. only The state are un- Not is this conclusion constitutional- and federal trial courts ly doubtedly mandated the fundamental nature of anxious to forestall collateral testify, but it also has the claims based on the denial of the would, therefore, practical advantage “forestallpng] it to leave spin-off proceedings.” procedure of collateral One these courts to fashion a obligations appellate of our as an court is ensures that the record reflects prevent litigation. unnecessary right. future defendant’s valid of this waiver opportu- procedure may colloquy With this this court had the entail a between defendant14, nity discharge obligation by judge avert- the trial a collo- ing alleged quy collateral claims de- based viola- between defense counsel and the 10. Strickland v. Washington, quy regarding with defendant waiver of appropriate judicial was "a model of con rights cern for the constitutional aof criminal 11. Rifkin, Majorie L. The Criminal Defendant’s defendant”), denied, cert. Right Testify: Right The to Be Seen But Not (1982). majority S.Ct. The Heard, 21 Colum.Hum.Rts.L.Rev. 273-74 expresses requiring concern over the trial court (1989); Dawson, Note, see also Seth Due Process testify to discuss the with the defendant Counsel’s Unilateral Waiver Defense of requirement because such a “would unnecessar Right Testify, Hastings To Const. Defendant’s ily attorney-client relationship intrude into the L.Q. unintentionally and could influence the defen 12. Alabama, Boykin 395 U.S. at Majority opinion dant in his or her choice.” at 1713. allayed by 1533 n. 8. This concern be carefully drafting colloquy between the trial Rifkin, supra note at 265. judge by employing and the defendant or one of 14. See Hollenbeck v. Estelle, procedures 452- the other on-the-record waiver men (5th Cir.) (noting judge’s that state trial collo- tioned above. personal from him his judge15, testify and to solicit presence of the trial in the fendant testify.18 Coun- pres- in the decision as to whether to counsel by defense a statement testimony sufficiently ambiguous, acknowledge- an sel’s is judge ence of the however, agree. my colleagues do not statement that ment the defendant case, then, accurate, signed by waiver This demonstrates the need a written criminal defen- with the trial court. an on-the-record waiver of a and filed the defendant testify. Because there is no procedure, it is sufficient dant’s Whatever case, (1) I on-the-record waiver in this reflects that defense such the trial record Teague’s conviction and re- defendant of his or her would reverse counsel advised (2) that for a new trial. mand case constitutional personally intelligently the defendant not to

made the choice II. majority agree if I were to with the Even B. a claim of ineffective assistance appropriate for ana- counsel is the vehicle problem illustrates the amply This case alleged lyzing the violation upon an a claim based adjudicating with testify, Teague’s conclude that con- alleged violation reaching must reversed. its viction as to the trial record is silent when the performance that counsel’s conclusion Here, right. waiver of this defendant’s deficient, heavily on majority not relies evidentiary hearing was held less post-trial testimony post-trial at the hear- counsel’s trial; Teague’s this after than ten weeks that, ing she rested the defense “when than the time period is far shorter of time case, Teague had assent- she believed that subsequent collateral trial and between not ed or acceded her recommendation” proceedings typical criminal case. this put him on the stand.19 Reliance on Nevertheless, post-trial evidentiary at the reasons. testimony inappropriate for two hearing Teague’s this First, gave testimony this before counsel clearly not recall the events counsel could her conversation with she realized that is- to the resolution of the factual critical regarding testifying his occurred Teague underlying Teague’s sues after, before, she rested the defense not initially example, For testi- claim. testimony Accordingly, case. Teag- had a fied that she conversation perception of erroneous on counsel’s based testifying shortly regarding ue his before events; chronology after counsel defense and she rested the case for the perception, her she testified corrected he had assented to her deci- that she felt [Teague] at all” as to she “didn’t consult After put sion not to him on the stand.16 Second, a fair testify.20 should whether he however, reviewing transcript, the trial testimony re- reading of counsel’s entire testimony, deciding her counsel corrected part that any conclusion on her veals that Teague her conversation with occurred voluntarily intelligently and assent- Teague defense, for the she rested case after put not to him on the ed to her decision before; unequivocal- she then testified unreasonable. stand was [Teague] consult at all” ly that she “didn’t convicted, testify.17 days Three after regarding he should for new testimony trial counsel filed a motion conclude that counsel’s demon- his Teague had discharge represented that that she failed to her trial. She strates right to tes- “denied his constitutional obligation to advice been O’Neill, pertinent Timothy Vindicating the De- 18. See Part II of this dissent. 15. See P. testimony Right Testify portion direct is set out at Crim- of counsel’s Constitutional fendant’s appendix to this dissent. Need an On-the-Record Waiv- in the inal Trial: The er, U.Pitt.L.Rev. 836-38 Majority opinion at 1535. See R3-19. 19. 16. R3-19. 20. R3-21. 17. R3-21. con- initially that this testified of' his Counsel by the actions tify in his own behalf she Teague before occurred with later, versation at the months attorney.” Two trial case; this while under the defense rested hearing motion on the evidentiary post-trial as fol- testified impression, she mistaken that she trial, testified counsel for new lows: Teague inform the week did” “probably Kearns, was if the decision Q. Ms. decision as ultimate that the

before trial Teague had made, Mr. you did feel that his to make.21 testify was whether him put not to your decision however, assented testified, that she Counsel further stand? on the postpone the they would Teague that told point? sorry. I’m At what A. he would whether decision as to you rest- Q. point before guess until the trial. I at the Teague had ed, Mr. you did believe that trial, Teague During course of your position? to or acceded assented when he would counsel repeatedly asked Yes, point. Not before A. at that repeated Notwithstanding these testify. mean, clearly left it had I I trial started. conversa- only had one requests, counsel the tri- when open for further discussion during regarding trial Teague tion with al started.23 had was this conversation testifying, majority testimony that the upon this It is counsel, Teague. not initiated perform- that counsel’s its bases conclusion that, clear dur- testimony makes Counsel’s majority con- deficient. The ance not was conversation, she ing course of this one however, counsel ignores, that veniently Teague’s personal decision did not solicit cor- events after changed her view of the testify: impression as to when her mistaken recting out, sat though I took him It wasn’t as place. took her with conversation I it with him. was and discussed down testimony, her coun- During the course of mean, my pretty belief was—I much— could that this sel conversation discovered to and he didn’t need my opinion was she rested occurred before not have [testify], certainly I made shouldn’t no recess there was case because I him. don’t know—I’m that clear to Upon that time. proceedings you I didn’t solicit him sure discovery, counsel testified: this this, want you or do satisfied honor, if there Your THE WITNESS: just I any kind discuss further. testi after Mr. no recess Patterson do. thought I he stated what should rested, I then the dis the time fied and I Mr. that had with cussion rested, obviously didn’t I and I after had well, him one I never asked whether — him at all.24 consult point thing I feel at this confident about Thus, unequivocally admitted remind it was that I did do was him not she Teague before did not consult she I I ultimately his decision. feel he not would made the final decision that meeting that we probably did testify. my before the trial had in office week is further evidence There started, point but at that Teague, the ultimate decision not made that to I I ever don’t think reaffirmed testi- Counsel that he would him that I mak- him or reminded wasn’t over, that, after the trial fied even think he ing that He was. decision. he her when Teague continued ask letting me know that was kind of was testify: willing, just deciding telling and was — know, He called me you calling He started me. you don’t very forcefully, him late, obviously times at home do several need to that.22 23. 21. R3-18. R3-19. added). R3-16, added). (emphasis (emphasis 24. R3-18 R3-21 distressed, question [By first

very and his Mr. Morrison] was, get my tell me “When do I side Now, Q. you your do remember final story?” meeting anything with him specific about you testifying,

what told him about or you what he asked about it? looking I was then that started back [I]t Well, basically during A: what we did concerned that I on it and became meeting go through was a mock di- him not have made clear to that it was cross-examination, rect and and I also choice, something and that this his was updated witnesses, him on his but that that he could decide to do or not decide to did, was what we and I’m confident that do....25 my at the of that end advice to Mr. testimony indicates that she Counsel’s Teague testify- was that he shouldn’t be Teague did not allow make the ultimate ing, going but we weren’t to decide that testify; he decision as to whether right then. rather, imposed upon she him her decision Q: you him your When told that it was I testify. Accordingly, that he would not testifying, advice that he wouldn’t be did would hold that the district court’s conclu- he seem a little bit concerned about Teague’s was not sion that will “over- position? clearly counsel is erroneous and borne” Yes, A: because there was another as- performance counsel’s was constitu- this, pect Kenny and that was Patter- tionally deficient. Kenny son. Patterson had assured Mr. Teague I would further hold that can Teague testifying that he would be and prejudice resulting from demonstrate coun- exonerating Teague. get- Mr. I was not performance. sel’s deficient This awas ting impression from Glenn Zell who government’s against close case. The case represented Mr. Patterson. Teague entirely upon was based the under- So, kept kept telling Teague I Mr. —I agent’s Teague perception cover we would deal with that when we knew immediately the few moments before his exactly going what Mr. Patterson agent Teague arrest. concluded that do, although to some I think it extent crime; participate Teag- intended to my way appeasing Teague Mr. Teague ue could have testified otherwise. my because firm belief was he shouldn’t convictions, prior had no admit- that, testified, Teague ted had he would Q. Now, itself, Teag- at the trial did Mr. truthful, open, have “come across as you ue make it known to his desire to tell circumstances, sincere.”26 Under these whatever, story how- or to declining counsel’s error to allow ever, you want to describe it? to exercise his was “so trial, couple During A. there were a deprive serious as to the defendant of a going me times when he asked was he fair a trial whose result is reliable.”27 testifying, going my or am I to tell be Accordingly, agree if I even were to side, point and I at that Mr. Patter- knew majority that the ineffective assistance said, testifying, why son would analysis appropriate of counsel for this don’t and see we wait how evidence Teague’s I would reverse conviction develops? and remand this case for a new trial. During testimony, Mr. Patterson’s were several times when started —there APPENDIX literally pulling my Mr. Excerpt testimony saying, from the direct not sleeve “That’s true. That’s Teague’s true,” said, given during “We will talk about February post-trial hearing: gets off when he the stand.” 27.Strickland, through Washington, 25. R3-26 R3-27. U.S. at 104 S.Ct. at 2064. 26. R3-19.

your feeling necessity about the of his testimony? again during me sometime He asked probably something A. I think he said going— he was the defense case whether well, should, will, willing if I I or I’m like tell going get his side when he was it, you I don’t to do it. I’ll do and said it, said, you do want to and I “What that, to, something I need like and know you need to you tell? do think What had the conversation here we tell?” though It as I took courtroom. wasn’t was what big of his concerns And one out, him sat down and discussed it with concerning Mr. Patterson had testified to pretty my I him. was belief much— strong- Teague felt gun, because Mr. mean, my opinion was—I was he didn’t ly strongly was adamant felt —not —he shouldn’t, certainly need to and and I Augustine told the truth Agent had him. I made that clear to don’t know— gun was gun about the and when the you I’m him sure I didn’t solicit from bag Pat- removed from the whereas Mr. this, you satisfied with or do want to changed terson that when he testi- had any just discuss this further. I kind of fied, something Teague I said to Mr. thought stated what I he should do. is, your concern don’t like that’s what you try THE COURT: Can recall what worry it I don’t think that about because spoken in words were that conversation? significant is a fact. This was like at a break? you my THE COURT: Would refresh THE WITNESS: It would have been dur- discrepancy in recollection about the break, ing a and it would have been testimony vague at trial? I’m about it at beginning of the I break because know point. down, Teague sitting Mr. was still and he me, “Well, Agent Augustine brought up going THE had it am I WITNESS: up testify?” testified that when he went to the cab Patterson, of the truck Mr. during THE COURT: And this was bag, there was a and that when he defense case? bag, in—he

looked was shown the and he THE WITNESS: This was glance bag, is allowed to in the and when Mr. defense case. It was after Patterson bag, gun he looked into the there was a my testified. I don’t recall—I looked at bag, point and at some Mr. Patter- notes, my by page, trial notes are gun put son removed the it on the order, pages I are out of so don’t passenger seat of the car between testified, know when Mr. Patterson side, driver’s and that is where it our whether it was before or after char- stayed. witnesses, by— acter might interject Mr. Patterson testified that he had re- MR. MORRISON: If I gun recollection, shop, placed everyone’s moved the at the bake refresh Mr. Pat- top bag, testify. it on and that when terson was the last witness to transaction, came to the scene of the might wrong THE I about WITNESS: gun already top outside on this, but then I would assume that there bag, Teague and Mr. had told me all I had to rest was break before because along gun that the bag, was inside the break, there seems to me that was a gun and he had not seen the until after Teague sitting and Mr. and I down Augustine had come to the cab leave, standing up Teag- and Mr. out, gun truck and I taken the and told me, “Well, going ue I kind of said am just Mr. didn’t think that was testify?” and, significant therefore, if that was said, you And that’s when “What do feeling strongly about, what he was so you feel need to about? he didn’t need to very And he was concerned about the Now, Q. any did Mr. testimony regarding gun make re- because sponse was, course, you relayed to what to him only as devel- new and,

listening being you said what know, difficulty maintaining he had really nothing else opment. There was composure. quite He cried a bit to us not—that was new was and, know, my asking questions you him said, and I what Mr. Patterson had about thought pre- that emotion that he had I “Well, already said, Augustine has Mr. listening vented him from was what They going that. testified about going prevented on and him from re- Patterson on Augustine over believe sponding intelligently. worry that. You that. Don’t about you THE COURT: How did think he testify.” don’t need to would come across in terms of he would something I’m sure he like And said open, seem direct? risk he Was there a well, will, help, or I’m I or I will if it will would seem evasive? He me ready willing and to do it. told No, THE no. I think he WITNESS: many times that he was not afraid to truthful, would have come across as willing testify, and testify and he was open, very and sincere. said, walking probably I was out and [By it, MR. You worry “Don’t about Donald. MORRISON] to,” I don’t have but didn’t solicit Q. Kearns, Ms. If the decision was well, I him him. never asked made, you Teague did feel that Mr. had whether — thing I feel confident about at this one your put assented to decision not to him point I remind him it that did not do was on the stand? ultimately his decision. I feel that I was sorry. point? A. I’m At what probably meeting did that we Q. guess point you I at the rest- before my in had office the week before the trial ed, you Teague did that Mr. had believe started, point during at that but your position? assented to or acceded to I I don’t think ever reaffirmed that to Yes, point. A. at that Not before him or reminded him that I mak- wasn’t mean, clearly trial started. I I had left it ing that decision. He I think he was. open tri- for further discussion when the letting kind of was me know that he was al had started.

willing, just deciding telling and was — Q. Now, you do at the end of remember know, very forcefully, you you him don’t you in the trial or not stated need to do that. open presence Teague Mr. court you expand THE COURT: Could a little Teague that Mr. to the court bit? You said there were demeanor con- testifying? specific. siderations. Be more A. I don’t recall that. through THE di- WITNESS: We went Q. So, oppor- had an Mr. never in my rect and a cross-examination of- tunity you position to hear take that fice, very and Mr. was scared object and then to it? court mean, protesting he because—I was and my knowledge, A. he To didn’t. very he was scared about what he was point THE Was there a COURT: —I’m facing, prison not the time in just perhaps trying to think back—where conviction, felony the fact of a convic- presence jury’s out of the there was tion, questions, so when I would ask him might might some or statement about ques- he would not listen to the entire not be called? He would start to cut me off and tion. THE I don’t remember that. WITNESS: respond thought I asking to what he I don’t remember—if there was a break him, my particularly and fear on testimony, I don’t after Mr. Patterson’s kept jumping if he cross-examination break, why remember there was a gun, O’Leary asking that Mr. would be know, just, you whether there question give response he would good point he, fact, court said this is a to recess wrong thing, and that nothing just was said us. re- way could be twisted around during the essentially proba- make member that we discussed it admissions that recess, bly the last weren’t even true because he wasn’t and Mr. Patterson was NICHOLS, Buddy Petitioner- witness, a recess there had to be Appellant Cross-Appellee, the heels of that. correct, MR. That’s MORRISON: day day the end of ended. That was BUTLER, Sheriff; Siegel Mac Sim Don after testified. There was Patterson man, Attorney of the State of General charges, some discussion about the Alabama, Respondents-Appellees charge I’m not sure if there was a con- Cross-Appellants.

ference, they day but came back next No. 90-7101. charge, closing for the and then Appeals, United States Court of jury and rendered a ver- deliberated Eleventh Circuit. dict. THE Was there a recess be- WITNESS: 26, 1992. Feb. charge fore the conference or I before rested?

MR. I there MORRISON: believe was charge recess before the confer-

brief record, It is in the and I can refer

ence. that, complete there over-

night recess between the time—there is transcript any

no—in the there is not rest,

portion says in it where it but as trial, you just go stop

we often do charge

into the conference. thought

THE WITNESS: I would have asked,

the court have “Are there

any further witnesses?” finding

MR. O’LEARY: I’m not such a

recess. honor,

MR. MORRISON: Your we are

looking page transcript, appear any

there does not to have been

appreciable any recess or recess at all jury after the was excused. Ms. Kearns

. again

moved on Rule and it was de-

nied, appears and then there abe brief conference,

charge and then there was a overnight.

recess honor,

THE WITNESS: Your if there no recess after Mr. Patterson testi- rested,

fied and the time I then the dis-

cussion that I had with Mr. rested, obviously

after had and I didn’t him

consult at all.

Case Details

Case Name: United States v. Donald Teague

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Feb 26, 1992

Citation: 953 F.2d 1525

Docket Number: 89-8181

Court Abbreviation: 11th Cir.