APPEAL FROM THE ORDER OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA, GRANTING A PETITION FOR A WRIT OF HABEAS CORPUS, AS OF CIVIL ACTION No. 73-313.
Gibbons, Forman and Rosenn, Circuit Judges.
This is an appeal by the Commonwealth of Pennsylvania from an order of the United States District Court for the Eastern District of Pennsylvania granting a writ of habeas corpus. The major issue presented here is whether appellee was unconstitutionally deprived of the right to testify at his own trial. We conclude that he was and, accordingly, we affirm the grant of the writ.
Norman Wilcox, the appellee, was convicted of rape in 1967 after a non-jury trial in the County Court of Philadelphia, and was sentenced to a term of imprisonment from four to ten years. At that trial, the defense proceeded on an alibi theory and presented Mr. Wilcox, his wife and his brother-in-law to establish the non-involvement defense. Following the denial of post-trial motions, direct appeals and collateral attacks under the Pennsylvania Post Conviction Hearing Act,*fn1 Mr. Wilcox filed a Petition for a Writ of Habeas Corpus on September 26, 1967 in the United States District Court for the Eastern District of Pennsylvania.
The District Judge granted the writ, concluding that the State Court Judge violated appellee's constitutional rights by announcing a verdict of guilty without first affording defense counsel an opportunity to make a closing argument.*fn2 That opinion suggested several of the arguments which might have been raised by defense counsel had he been given an opportunity to make a closing statement, and noted what the District Judge perceived to be infirmities in the Commonwealth's proof of actual force. The District Judge stayed issuance of the writ for thirty days in order to afford the Commonwealth an opportunity to retry Mr. Wilcox.
Mr. Wilcox was retried in a jury trial on December 11 and 12, 1967. At that trial Mr. Wilcox was represented by Ms. Carolyn E. Temin of the Defender Association of Philadelphia, who had previously represented appellee in an unrelated robbery case as well as at his first habeas corpus proceeding in the District Court. Ms. Temin first conferred with Mr. Wilcox only fifteen minutes before the trial was scheduled to begin.
It is apparent from Ms. Temin's voir dire examination of the jury panel*fn3 that she had decided to abandon the alibi defense presented at appellee's first trial and to proceed instead on the theory that the alleged victim had consented to having sexual relations with Mr. Wilcox. However, it was not until the close of the Commonwealth's case that Ms. Temin revealed her new strategy to Mr. Wilcox. Mr. Wilcox, who anticipated that the theory of defense at this trial would be one of non-involvement, told Ms. Temin that he objected to her departure from the defense theory presented at his first trial and informed her that he wanted to testify in his own behalf and to present alibi testimony from witnesses who were in the courtroom. Ms. Temin insisted on resting the defense without presenting any evidence and on making a closing argument to the jury based on the consent theory.*fn4 When the disagreement between Mr. Wilcox and Ms. Temin grew more pronounced, the judge recessed the trial to afford them an opportunity to reconcile their difference of opinion as to proper trial tactics.
After briefly consulting with her client, Ms. Temin requested a side-bar conference with the Trial Judge and the District Attorney to apprise them of the disagreement which existed between herself and Mr. Wilcox. Although the State court record is inexplicably devoid of the substance of this side-bar conference and the subsequent events, the District Judge found that Ms. Temin advised the Trial Judge that Mr. Wilcox demanded to testify over her objection and that if the judge permitted him to do so, she would make a motion to withdraw as counsel. Ms. Temin grounded her motion to withdraw on the belief that Mr. Wilcox's direct testimony as to non-involvement in the rape would have been perjured testimony, which she felt could not ethically be presented to the jury.*fn5 The District Court also found that Ms. Temin, communicating the Trial Judge's ruling, informed Mr. Wilcox that if he insisted on testifying, Ms. Temin would be permitted to withdraw as counsel, and he would have to represent himself during the remainder of the trial. After being informed of the Trial Judge's ruling, Mr. Wilcox decided not to testify and the defense rested without presenting any evidence. Mr. Wilcox was convicted a second time and again was sentenced to a period of incarceration for four to ten years.
Following unsuccessful post-trial motions, direct appeals and collateral attacks in the State courts, Mr. Wilcox filed the present Petition for Writ of Habeas Corpus in the United States District Court for the Eastern District of Pennsylvania. An evidentiary hearing was subsequently held on February 14, 1975. The District Judge granted the writ of habeas corpus concluding that Mr. Wilcox would have taken the stand had it not been for the Trial Judge's ruling that if he did so, he would have to forego his constitutional right to counsel. The District Judge held that Mr. Wilcox had a constitutional right to take the stand and testify in his own behalf, which only he could waive. The District Judge further held that the conduct of Mr. Wilcox's counsel and the rulings of the Trial Judge impinged upon that constitutional right and deprived the appellee of his fundamental right to a fair trial. The Commonwealth brought this appeal.
The Commonwealth argues that the appellee was not deprived of a fair trial, since Mr. Wilcox had no constitutional right to testify in his own behalf and since Ms. Temin, as a matter of trial strategy, waived the appellee's statutory right to testify.
As the District Judge reasoned, under the common law, criminal defendants were not competent to give sworn testimony in their own behalf. This disability has been removed by the enactment of federal*fn6 and state*fn7 laws granting the privilege of an accused to testify in his own defense. The right to testify is not specifically granted by the Constitution. Thus, if a defendant in a State court has a Federal constitutional right to testify, that guarantee must emanate from the due process requirements of the Fourteenth Amendment. See U.S. v. Ives, 504 F.2d 935 (9th Cir. 1974), vacated 421 U.S. 944, 95 S. Ct. 1671, 44 L. Ed. 2d 97 (1975).
A number of cases have specifically held that a criminal defendant has no constitutional right to testify in his own behalf. Sims v. Lane, 411 F.2d 661 (7th Cir. 1969), cert. denied, 396 U.S. 943, 90 S. Ct. 378, 24 L. Ed. 2d 244 (1969); Sims v. State, 246 Ind. 660, 208 N.E.2d 469 (1965); Kinder v. Commonwealth of Ky., 269 S.W.2d 212 (Ky. 1954); State v. Hutchinson, 458 S.W.2d 553 (Mo. 1970) (en banc); cf. U.S. v. Von Roeder, 435 F.2d 1004 (10th Cir. 1970), cert. denied, 403 U.S. 934, 91 S. Ct. 2264, 29 L. Ed. 2d 713 (1971). Another line of cases, while avoiding the question of whether the "right to testify" is of constitutional dimension, have stated that no relief can be granted where competent counsel makes a strategic determination that the defendant not testify. U.S. v. Poe, 122 U.S. App. D.C. 163, 352 F.2d 639 (1964); U.S. v. Garguilo, 324 F.2d 795 (2d Cir. 1963); Sims v. State, supra; Kinder v. ...