Lakeside v. State of Oregon Petition and Briefs
Public Court Documents
January 1, 1976 - January 1, 1977

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Brief Collection, LDF Court Filings. Lakeside v. State of Oregon Petition and Briefs, 1976. 6fc54842-ba9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/19e95d9e-0ea1-4128-90cd-6d2e669e675e/lakeside-v-state-of-oregon-petition-and-briefs. Accessed April 19, 2025.
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The Supreme Court of the United States Ensio Lakeside versus State of Oregon Petition ana Briefs Law Reprints Criminal Law Series Volume 9, no. 23 1977/1978 Term IN THE S uprem e C o u rt of tfje fBmteb States? OCTOBER TERM, 1977 No. 76-6942 ENSIO RUBEN LAKESIDE, Petitioner, v. OREGON, Respondent. ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF OREGON PETITION FOR WRIT OF CERTIORARI PHILLIP M. MARGOLIN Nash & Margolin 555 Oregon Nat’l Bldg. 610 S.W. Alder Portland, OR 97205 Telephone: (503) 248-0731 Court-appointed Attorney for Petitioner PETITION FOR WRIT OF CERTIORARI TABLE OF CONTENTS Citations ..................................................... Jurisdiction.......... .................................. * • Question Presented . ........ * • Constitutional Provisions Involved • • • • « ................ Statement of F a c t s ............ ........................ • * • Reasons Why a Writ of Certiorari Should be Issued I. The importance of the issues raised outside of the facts of the specific case0 • • * • II. Why giving the "failure to testify" instruction over objection of defense counsel violates the Fifth Amendment to the United States Constitution. . ............... ■ III. Why the giving of the "failure to testify" instruction, over objection, violates the Sixth Amendment to the United States Constitution. ............ ° • • • 3 IV. Since it is reversible error for a trial court to refuse to give the "failure to testify" instruction when requested by defense counsel, how can it be reversible error for the court to give such an instruction? » • Conclusion 1 2 2 2 3 4 4 11 13 Constitutional Provisions Involved Amendment V ........ .. Amendment VI .........................« . . . Amendment XIV ............................. Oregon Revised Statutes ORS 162.155 3 Cases Cited Bruno v. United States, 308 US 287 (1959) 11 Griffin v. California, 380 U.S. 609 (1965) 6 Gross v. State, 306 NE 2d 371 (Ind. Supp., 1974) 5 Harvey v. State, 187 So 2d 59 (Pla App 1966) 6 Mengarelli v„ U.S. Marshall, 476 F2d 617 (CA9, 1973) 5 Pearson v. State, 28 Md. App. 196, 343 A2d. 916 (1975) 6 People v. Horrigan, 253 Cal App 2d 519, 61 Cal Rptr 403 (1967) 5 People v. Molano, 253 Cal App 2d 841, 61 Cal Rptr 821 (1967) 5,7 Rogers v. State, 486 SW2d. 786 (Tex Cr App 1972) 6 Russell v. State, 240 Ark 97, 398 SW2d. 213 (1966) 5 State v0 Baxter, 51 Haw 57, 454 P2d. 366 (1969) 6,11 State v. Goldstein, 65 Wash. 2d 901, 400 P2dc 388 (1965) 5 State v0 Hale, 22 Or App 144, 537 P2d 1173 (1975) 11 State Vo Kimball, 176 NW2d. 864 (Iowa, 1970) 5 State v. Lakeside, 25 Or App 539, 549 P2d. 1287 (1976) 1 State y0 Lakeside, 277 Or 569, P2d. (1977) 2,6 State v. White, 285 A2d 832 (me, 1972) 5 U. So Vo Ash, 413 U.S. 305, (1973) 8 U. So v. McGann, 431 F2d 1104 (CA 5, 1970) 6 Uc S. v. Rimanich, 422 F2d 817 (CA 7, 1970) 6 U. S„ v. Schwartz, 398 F2d. 464 (CA 7, 1968) 6 U. S. v. Smith, 392 F2d 302 (CA 4, 1968) 5 Villines v0 State, 492 P2d 343 (Okla Ct of Crim Appeals, 1971) 5 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1976 No. ENSIO RUBEN LAKESIDE, Petitioner v. STATE OF OREGON, Respondent PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF OREGON Petitioner prays that a writ of certiorari issue to review the judgment of the Supreme Court of the State of Oregon which was made and entered in the above cause, on March 17, 1977. A petition for rehearing was filed with the Oregon Supreme Court and this petition for rehearing was denied on April 12, 1977. CITATIONS TO OPINIONS BELOW Petitioner was charged with Escape in the Second Degree, ORS 162.155. Petitioner was found guilty by a jury and was sentenced on October 1, 1975. Petitioner appealed the judgment of the trial court to the Oregon Court of Appeals. The Oregon Court of Appeals reversed petitioner's con viction in State of Oregon v. Ensio Ruben Lakeside, 25 Or App 539, l 549 P2d. 1287 (1976). The State of Oregon petitioned the Oregon Supreme Court for review of the opinion of the Court of Appeals and review was granted. The Oregon Supreme Court reinstated petitioner's con viction and reversed the decision of the Oregon Court of Appeals, with one Justice dissenting, in State of Oregon v. Ensio Ruben Lakeside, 277 Or 569, P2d. (1977). JURISDICTION The jurisdiction of this Court is invoked under 28 U.S.C., Section 1257 (3). QUESTION PRESENTED Is it a violation of the Self-Incrimination Clause of the Fifth Amendment to the United States Constitution and a violation of a defendant's Right to Counsel, guaranteed by the Sixth Amendment to the United States Constitution, for the trial court to comment on a defendant's failure to testify, by giving a jury instruction concerning this fact, after a defendant has made a timely objection to the giving of this instruction prior to the charge to the jury? CONSTITUTIONAL PROVISIONS INVOLVED The Constitutional provisions involved in this petition are the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. Amendment V. "No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a Grand 2 Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be com pelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." Amendment VI. "In all criminal prose cutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the wit nesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense." Amendment XIV. "Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citi zens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privi leges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within it’s jurisdiction the equal protection of the laws..." STATEMENT OF FACTS Petitioner was charged with Escape in the Second Degree, ORS 162.155. On September 25 and 26, 1975, petitioner stood trial. Petitioner did not take the stand during his trial. As part of his trial strategy, petitioner's counsel was careful to avoid any mention of the fact that petitioner would not take the witness stand. Petitioner's counsel made no mention of this fact in Voir Dire or opening and closing argument. 3 Prior to instructing the jury, the trial court met with counsel in chambers. At that time, the trial court informed coun sel that it intended to give the following instruction: "Under the laws of this State, a defendant has the option to take the wit ness stand to testify in his or her behalf. If a defendant chooses not to testify, such a circumstance gives rise to no inference or presumption against the defendant, and this must not be considered by you in de termining the question of guilt or inno cence .n Petitioner's counsel informed the court that he did not want this instruction to be given. He stated that giving the instruction was like "waving a red flag in front of the jury". The trial court gave the instruction over petitioner's timely objection. Petitioner took exception to the giving of the instruction. REASONS WHY A WRIT OF CERTIORARI SHOULD BE ISSUED I. The importance of the issues raised outside of the facts of the specific case. The specific issue raised in this petition is very narrow and it is whether or not it is reversible error for a trial judge to instruct a jury concerning the failure of a defendant to testify, when defense counsel has objected to the giving of this instruction prior to the giving of the instruction. This is not a case where no objection is made prior to the giving of the "failure to testify" instruction, and the court 4 gives such an instruction sua sponte. This is not a case where the court gives such an instruction sua sponte and objection is made after the instruction is given. This is not a case where one co-defendant asks for the instruction and the other co-def endant objects. The specific issue raised in this petition has been litigated in many state and federal jurisdictions and there is a split of authority in both the state and federal jurisdictions on this issue. Several state and federal courts have held, either directly or in dicta, that it is error for a court to instruct a jury concerning the failure of a defendant to testify when defense counsel has made a timely objection to the giving of the instruction: State cases - People v. Molano, 253 Cal App 2d 841, 61 Cal Rptr 821 (1967); Russel v. State, 240 Ark 97, 398 SW 2d 213 (1966); Villines v. State, 492 P2d 343 (Okla Ct of Crim Appeals, 1971); Gross v. State, 306 NE2d 371 (Ind. Supp., 1974); People v. Horrigan, 253 Cal App 2d 519, 61 Cal Rptr 403 (1967); State v. White, 285 A2d 832 (Me, 1972); State v. Kimball, 176 NW2d 864 (Iowa, 1970), Federal cases - U.S. v. Smith, 392 F2d. 302 (CA4, 1968) ; Menqarelli v. U.S. Marshall, 476 F2d. 617 (CA 9, 1973). Several state and federal courts have held that it is not error for a court to instruct a jury concerning the failure of a defendant to testify even though defense counsel has made a timely objection to the giving of the instruction: State cases - State v. Goldstein, 65 Wash. 2d 901, 400 P2d. 368 (1965), cert den 5 382 U.S. 895 (1965); Pearson v. State, 28 Md. App. 196, 343 A2d. 916 (1975); Rogers v. State, 486 SW2d. 786 (Tex Cr App 1972); Harvey v. State, 187 So 2d 59 (Fla App 1966), cert den 386 U.S. 923 (1967); State v. Baxter, 51 Haw 57, 454 P2d. 366 (1969), cert den 397 U.S. 955 (1970). Federal cases - United. States v. Schwartz, 398 F2d. 464 (CA 7, 1968), cert den 393 U.S. 1062 (1969); United States v. McGann, 431 F2d 1104 (CA 5, 1970); United States v. Rimanich, 422 F2d 817 (CA 7 1970). When the Oregon Supreme Court decided the case at bar it pointed out that it had to decide whether the giving of the instruction over prior objection was an invasion of constitutional rights "without help from the one source which could put the issue to rest; namely, the United States Supreme Court." State v. Lake side , supra., 277 Or. at 587. Since this issue arises from time to time in both the state and federal jurisdictions, it would be help ful if this court would put the issue to rest by accepting review of this case. II. Why giving the "failure to testify" instruction over objection of defense counsel violates the Fifth Amendment to the United States Constitution, In Griffin v. California, 380 U.S. 609 (1965), the defendant did not testify at his trial. The prosecutor commented to the jury on the failure of the defendant to testify. The trial court instructed the jury that the defendant had a constitutional right not to testify but went on to say that the jury could consider this failure to testify as evidence bearing on the question of whether or not he was guilty of the crime charged. This court held that the Fifth Amendment forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt. In People v. Molano, 253 Cal App 2d. 841, 61 Cal Rptr 821 (1967) an instruction identical in content to the instruction given in the case at bar was given over objection of defense counsel. The California Court of Appeals, Second District, Division Four held that: "Since Griffin v. State of California, (Apr. 1965) 380 US 609, 85 S Ct 1229, 14 L Ed 2d 106, either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt, are forbidden. Defendant contends, and we believe correctly so, that to give this instruction when he did not want it to be given, was tantamount to making a 'comment' proscribed by Griffin. The argument being that such an instruction highlights and emphasizes the fact that the accused did not take the stand. "Particularly apt here, we believe, is the comment of Mr. Justice Douglas in his dissenting opinion in United States v. Gainey, (Mar. 1965) 380 US 63, 73 ... 'Just as it is improper for counsel to argue from the defendant's silence, so_ iŝ it improper for the trial judge to call attention to the fact of defendant's silence. Indeed, under-18 U.S.C. Section 3481, the defendant is entitled as a matter of right to have the trial judge expressly tell the jury that it must not attach any importance to the defen dant's failure to testify; or if the defendant sees fit, he may choose to have no mention made of his silence by anyone. Bruno v. United States, 308~US 287, 60 S Ct 198, 84 L Ed 257’ [Emphasis added]" Id. 61 Cal Rptr at 824-825. 7 Although, as discussed below in part IV, it is often necessary to have the "failure to testify" instruction given to protect a defendant's rights, under certain circumstances, the giving of the instruction constitutes a "comment" on the failure of the defendant to testify and is as detrimental to a defendant's position as an illegal comment by the prosecutor about this fact. III. Why the giving of the "failure to testify" instruction, over objection, violates the Sixth Amendment to the United States Constitution. In United States V. Ash, 413 U.S. 305, (1973) this court discussed the historical background of the Sixth Amend ment : "A concern of more lasting importance was the recognition and awareness that an unaided layman had little skill in arguing the law or coping with an intricate pro cedural system. The function of counsel as a guide to complex legal technicalities long has been recognized by this Court. Mr. Justice Sutherland's well known observations in Powell bear repeating here: 'Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is un familiar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge or evidence that is irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense even though he may have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty he faces the danger of conviction because he does not know how to establish his innocence.' 287 U.S., at 69, 53 S. Ct., at 64. "The Court frequently has interpreted the Sixth Amendment to assure that the 'guiding hand of counsel' is available to those in need of it's assistance . . . " Id., 413 U.S. at 307-308. Later on the Court stated that: " . . . Mr. Justice Balck, writing for the Court in Johnson v. Zerbst, 304 U.S. 458, 46 2- 463, 58 S. Ct. 1019, 1022, 82 L Ed 1461 (1938), spoke of this equalizing effect of the Sixth Amendment's counsel guarantee: 'It embodies a realistic recog nition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tri bunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel' "This historical background suggests that the core purpose of the counsel guarantee was to assure 'Assistance' at trial, when the accused was confronted with both the intricacies of the law and the advocacy of the public pro secutor." Id., 413 U.S. at 309. Petitioner is indigent and had to have an attorney appointed to represent him so that he, a layman, might have the benefit of the advice of someone trained in the law at his trial. Petitioner's counsel decided that it would be adverse to petitioner's interests to have petitioner testify at his trial. As part of his trial strategy, petitioner made no mention of this fact during voir dire or opening and closing arguments. Petitioner's counsel made no comment on the petitioner's failure to testify because petitioner's counsel did not want to highlight this point. When the trial court gave the objected to instruction, it called attention to the fact that petitioner did not testify and destroyed all the possible benefit that might have inured to petitioner because of the trial strategy. Additionally, had petitioner's counsel known that the trial court was going to give the "failure to testify" instruction, petitioner's counsel might have changed his strategy and voir dired the jury on the effect that not having the petitioner testify might have on each individual juror. The Sixth Amendment guarantees a defendant the right to have counsel to advise him at his trial. One of the functions of an attorney is to plan a trial strategy. The selection of witnesses, the content of voir dire, the content of direct and cross examination and the content of opening and closing arguments are often dictated by the trial strategy. Obviously, a judge has a duty to interfere with a trial strategy that violates, for in stance, the rules of evidence. If petitioner's counsel, as part of his trial strategy, had sought to introduce inadmissible hearsay evidence, the court would have to interfere with the trial strategy by keeping such evidence out of the trial. However, under the specific facts in the case at bar, there was no rule of law which mandated the giving of the instruction. It makes a mockery of the Sixth Amendment to hold that a defendant has a right to counsel, but then permit a judge to overrule the advice that that counsel gives to a defendant, when there is no legal basis for interfering. 10 IV. Since it is reversible error for a trial court to refuse to give the "failure to testify" instruction when re quested by defense counsel, how can it be reversible error for the court to give such an instruction? Under federal law, Bruno v. United States, 308 US 287 (1959), and the law of the State of Oregon, State v. Hale, 22 Or App 144, 537 P2d 1173 (1975), a defendant has an absolute right to have the "failure to testify" instruction given. The argument is frequently made that if it is reversible error for a trial court to refuse to give this instruction, it can not be reversible error to give the instruction. In State v. Baxter, supra., 454 P2d at 367, the Hawaii Supreme Court stated that: "We can not see how an identical instruction will affect a jury differently by the fact that, unbeknown to it, in one case there was an object ion and in the other there was not..." The wording of the "failure to testify" instruction is not at issue here. What is at issue is the giving of the instruct ion at all. Under certain circumstances, it is advantageous to have the trial court instruct the jury concerning the defendant's failure to testify. If the defendant can not take the stand for some reason and there is evidence in the trial that can only be explained by the defendant, then defense counsel would want to have a "failure to testify" instruction given to the jury in hopes that they will not hold the defendant's failure to testify against him. 11 Under other circumstances, it is extremely disadvan tageous to have a "failure to testify" instruction given. Suppose that defendant puts on an alibi defense and produces several witnesses who testify that the defendant was at some place other than the scene of the crime at the time that the crime was committed. Furthermore, assume that the defendant has a lengthy criminal record, including convictions for the crime charged, and makes a bad appearance on the stand. Since the defendant would add nothing to the testimony of the alibi witnesses and would injure his cause by taking the stand, trial strategy would dictate that defense counsel not put defendant on the stand and try to call as little attention as possible to the defendant's failure to take the stand. If the defendant's witnesses supply all of the information that the defendant would supply had he taken the stand, the jury will probably not think too much of the defendant's failure to take the stand. Under such circumstances, defense counsel would not want to have the failure of the defendant to take the stand highlighted by the giving of an instruction concerning this fact. The giving of an identically worded "failure to testify" instruction can be harmful or helpful depending on the facts of the individual case. Defense counsel, if competent, is the best person to determine when the failure to testify instruction should be given. If defense counsel determines that the giving of the instruction will be detrimental to his client, it is a violation of both the Fifth and Sixth Amendments to the United States Constitution for a trial judge to give that instruction over objection. CONCLUSION For the foregoing reasons, petitioner prays that a Writ of Certiorari issued to review the judgment rendered by the Oregon Supreme Court in this case. Respectfully submitted, Phillip M. Margolin 610 S.W. Alder 909 Oregon Nat’1 Bldg. Portland, OR 97205 Telephone: 248-0731 Attorney for Petitioner in tfje Supreme Court of tfje tHniteb States OCTOBER TERM, 1977 No. 76-6942 ENSIO RUBEN LAKESIDE, v. STATE OF OREGON, Petitioner, Respondent. On Writ of Certiorari to the Supreme Court of the State of Oregon BRIEF IN OPPOSITION JA M E S A. REDDEN A tto rney G enera l of O regon AL J . LAUE Solicitor G eneral THOMAS H. DENNEY A ssistan t A tto rney G eneral S ta te Office B uilding Salem , O regon 97310 Phone: (503) 378-4295 C ounsel fo r R espondent Page Opinions Below .......................................... 1 Question Presented ............ . ..................... 1 Constitutional Provisions Involved ...................... 2 Statement of the Case................................... 2 Reasons for Denying the Writ: I. Petitioner's Fifth Amendment Claim Is Not Substantial Enough To Warrant Review . . . . . 3 II. Petitioner's Sixth Amendment Claim Is Neither Properly Raised Nor Substantial Enough To Warrant Review ............................... 4 Conclusion....................................... 5 TABLE OF AUTHORITIES Cases Frazier v. Cupp, 394 U.S. 731 (1969).................. 4 Griffin v. California, 380 U.S. 609* (1965)............. 4 Other Authorities Anno., "Accused's Failure To Testify — Charge," 18 A.L.R.3d 1335 (1968) . . ....................... 3 TABLE OF CONTENTS 17 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1977 No. 76-6942 ENSIO RUBEN LAKESIDE, Petitioner, v. STATE OF OREGON, Respondent. On Petition for a Writ of Certiorari to the Supreme Court of the State of Oregon BRIEF FOR RESPONDENT IN OPPOSITION OPINIONS BELOW The petition for certiorari herein omits the unofficial (Pacific Reporter) citation to the opinion of the Oregon Supreme Court in this case. It is 561 P .2d 612 (1977). JURISDICTION The decision of the Oregon Supreme Court in this matter was filed on March 17, 1977. A timely petition for rehearing was denied on April 12, 1977, and the petition for certiorari was filed within 9 0 days of the latter date, on June .17, 1977. The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(3). QUESTION PRESENTED Does the giving of a jury instruction in a criminal case, over the defendant's objection, that no inference may be drawn from the fact that the defendant did not testify violate either the privilege against self-incrimination guaranteed by the Fifth 19 Amendment or the right to assistance of counsel guaranteed by the Sixth Amendment? N.B. For the reasons set forth below, respondent does not concede that petitioner's Sixth Amendment claim is properly raised and preserved. CONSTITUTIONAL PROVISIONS INVOLVED Petitioner's statement of the constitutional provisions involved in this case is accepted, with the qualification that respondent does not concede that petitioner's Sixth Amendment claim in properly raised and preserved, for the reasons set forth below. STATEMENT OF THE CASE Respondent supplements petitioner's "Statement of Facts" as follows. In petitioner's trial for Escape in the Second Degree, the trial court instructed the jury that no inference was to be drawn from the fact that defendant did not testify in his own behalf, using the language set forth at page 4 of the petition for cer tiorari herein. Defendant excepted to the giving of this in struction as follows: THE COURT: . . . Does the defendant have any further exceptions? [DEFENSE COUNSEL]: Yes, I have one exception. I made this in Chambers prior to the closing statement. I told the Court that I did not want an instruction to the effect that the defendant doesn't have to take the stand, because I felt that that's like waving a red flag in front of the jury, so I do have an exception to the instruction given to the effect that the defendant doesn’t have to take the stand, and that that should not be considered against him. THE COURT: The defendant did orally request the Court ji)st prior to instructing that the Court not give the usual instruction to the effect that there are no inferences to be drawn against the defendant for failing to take the stand in his own behalf. The Court felt that it was necessary to give that instruction in order to properly protect the defendant, and therefore the defendant may have his exception. (Tr. 235) . Petitioner's brief in the Oregon Court of Appeals argued only that the giving of the instruction in question violated his Fifth Amendment right against self-incrimination, as is apparent from the manner in which he stated the question presented on appeal. Did the trial court violate appellant's rights, guaranteed by the Self-Incrimination Clause of the Fifth Amendment to the United States Constitution, by instructing the jury concerning appellant's fail ure to testify, when appellant objected to the giv ing of this instruction prior to the charge to the jury? (Appellant's Brief, at 1). As petitioner acknowledged in his petition for rehearing in the Oregon Supreme Court, he first attempted to inject a Sixth Amend ment claim into this case during oral argument in the Court of Appeals (Petition for Rehearing, at 2). Neither the opinion of the Court of Appeals nor the opinion of the Oregon Supreme Court discusses that claim, as petitioner complained in his petition for rehearing (Id./ at 2-3) REASONS FOR DENYING THE WRIT I. Petitioner's Fifth Amendment Claim Is Not Substantial Enough To Warrant Review. It is true, as the petition for certiorari herein points out, that there is a division of authority on the question of whether the giving, over objection, of an instruction that no inference is to be drawn from the fact that the defendant in a criminal case has not testified in his own behalf violates the privilege against self-incrimination, although it appears that the majority of juris dictions which have considered the question hold, like Oregon, that it does not. See Anno., "Accused's Failure To Testify — 21 Charge," 18 A.L.R.3d 1335 (1968). If the mere fact that the jurisdictions of this country are divided over the question were sufficient to create a question substantial enough to warrant resolution by this Court,, the present case would seem to be a satisfactory one in which to resolve it. We submit, however, that the result reached by the Oregon Supreme Court is clearly the correct one and that, rather than disturbing that result, this Court should postpone its consideration of the question until it is confronted with a case holding to the contrary. In essence, petitioner is asking this Court to extend its holding in Griffin v. California, 380 U.S. 609 (1965), and to say that the Fifth Amendment not only prohibits argument by the pro secution and instructions by the trial court which invite the jury to draw inferences adverse to a criminal defendant who does not testify, but also prohibits any reference to the fact that the defendant did not testify, even when the reference is in a context intended to prevent the jury from drawing such inferences. Such a holding would be tantamount to a holding that a jury which is cautioned to draw no inference from the fact that the defendant does not testify is not capable of following such an instruction, but cf. Frazier v. Cupp, 394 U.S. 731, 736 (1969), or at least, to a holding that the defendant has a constitutional right to gamble that a jury which is not cautioned to avoid drawing adverse inference from defendant's silence will be less likely to do so than one which is. Neither holding, we submit, is sound law, and this Court should not declare either to be the law. II. Petitioner's Sixth Amendment Claim Is Neither Properly Raised Nor Substantial Enough To Warrant Review. Alternatively, petitioner claims that the giving of the in struction that no inference may be drawn from the fact that he did not testify, over the objection of his attorney, constitutes 22 a denial of his Sixth Amendment right to the assistance of counsel (Petition, at 8-10). As pointed out in our Statement of the Case, above, petitioner first attempted to raise this claim on oral arg ument in the Oregon Court of Appeals and neither of the Oregon appellate courts addressed it. For this reason, we do not con cede that petitioner's Sixth Amendment claim is properly before this Court. Assuming, arguendo, that it is, the claim is without merit. The gist of petitioner's Sixth Amendment argument seems to be that any trial court ruling which interferes with defense counsel's tactics or strategy deprives an accused of the effective assistance of counsel, at least to the extent of that interference and to the extent that the interference is erroneous. This reason ing would make a Sixth Amendment issue of every trial court ruling adverse to every defendant represented by counsel in a criminal case. It is not surprising that neither of the Oregon appellate courts dignified this contention with a response, if they did regard it as properly before them. Nor is it surprising that none of the cases cited in the petition for certiorari offers the slightest support for it. CONCLUSION For the above reasons, the petition for a writ of certiorari should be denied. Respectfully submitted, JAMES A. REDDEN Attorney General of Oregon AL J. LAUE Solicitor General THOMAS H. DENNEY Assistant Attorney General Counsel for Respondent September 12, 1977 23 IN THE Supreme Court of tf)e (Hniteb OCTOBER TERM, 1977 N o. 7 6 -6 9 4 2 ENSIO RUBEN LAKESIDE, Petitioner, v. OREGON, Respondent. ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF OREGON REPLY BRIEF FOR PETITIONER PHILLIP M. MARGOLIN Nash & Margolin 555 Oregon Nat’l Bldg. 610 S.W. Alder Portland, OR 97205 Telephone: (503) 248-0731 Court-appointed Attorney for Petitioner 25 TABLE OF CONTENTS Page CITATION x JURISDICTION 1 QUESTION PRESENTED CONSTITUTIONAL PROVISIONS INVOLVED 2 STATEMENT OF FACTS 2 ARGUMENT 9 CONCLUSION 3 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1977 No. 76-6942 ENSIO RUBEN LAKESIDE, Petitioner, OREGON, Respondent. REPLY BRIEF OF PETITIONER CITATION TO OPINION BELOW See Petitioner's Opening Brief JURISDICTION See Petitioner’s Opening Brief QUESTION PRESENTED Is it a violation of the Self-Incrimination Clause of the Fifth Amendment to the United States Constitution and a vio lation of a defendant's Right to Counsel, guaranteed by the Sixth Amendment to-the United States Constitution, for a trial court to comment on a defendant's failure to testify at his trial, by giving a jury instruction concerning this fact, after a defen dant has made a timely objection to the giving of the instruction prior to the charge to the jury? CONSTITUTIONAL PROVISIONS INVOLVED See Petitioner's Opening Brief STATEMENT OF FACTS See Petitioner's Opening Brief ARGUMENT Petitioner alleges that the trial court violated the Fifth and Sixth Amendments to the United States Constitution by giving a jury instruction concerning petitioner's failure to testify over objection. On page nine of it's brief, Respondent states: "...As petitioner acknowledged in his petition for rehearing in the Oregon Supreme Court (App. 27-23), he did not make this claim in his brief in the state appellate courts, but urged it for the first time on oral argument be fore the Oregon Court of Appeals. Neither that court nor the Oregon Supreme Court specifically addressed this claim, possibly because of the courts' rules against noticing contentions not fairly raised in the trial court and set forth in the briefs of the parties. Cf. State v. Hick- mann, 273 Or 358, 540 P2d 1406 (1975). For this reason, we do not concede that petitioner's Sixth Amendment claim is properly before this Court..." Petitioner contends that his Sixth Amendment claim is properly before this Court. Petitioner orally notified respondent that he intended to present this argument prior to oral argument in the Oregon Court of Appeals. (AppI 28) The Oregon Court of Appeals obviously considered peti tioner's Sixth Amendment claim that the trial court illegally in terfered with petitioner's trail strategy by giving the "failure to testify" instruction over objection and, though not specifically mentioning the Sixth Amendment, the "trial strategy" argument 30 clearly formed the basis for it's decision: "...The defendant, however insists that giving the instruction over his objection un justifiably interfered with his trial strategy, i.e., to avoid mention of his failure to testify. * * * "Such a rule allows defense counsel full latitude in matters of trial strategy__" (App. 7} The Oregon Supreme Court, in granting the respondent's Petition for Review, informed the parties that the Oregon Supreme Court would consider the following questions when the issue was argued before it: "D Whether it is reversible error for the trial court to give an instruction, over a criminal defendant's timely objection, that no inference or presumption affecting guilt or innocence arises from that defendant's failure to take the stand during the trial? "2) The basis for such a rule." (App. 27) The Oregon Supreme Court did not limit it's inquiry to the Fifth Amendment, but asked for any basis for a rule requiring reversal i.f the instruction was given over objection. CONCLUSION Petitioner's Sixth Amendment claim is properly before the Court. Respectfully submitted, PHILLIP’*. MARGOLIN Attorney for Petitioner * IN THE Suprem e C o u rt of tfjeU m teb S ta tes OCTOBER TERM, 1977 No. 76-6942 ENSIO RUBEN LAKESIDE, P etitioner, v. OREGON, R esp o n d en t. ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF OREGON BRIEF OF PETITIONER PHILLIP M. MARGOLIN Nash & Margolin 555 Oregon Nat’l Bldg. 610 S.W. Alder Portland, OR 97205 Telephone: (503) 248-0731 Court-appointed Attorney for Petitioner 33 (i) TABLE OF CONTENTS Page CITATION .................................................................................... 1 JURISDICTION ............................................................................ 2 QUESTION PRESENTED .......................................................... 2 CONSTITUTIONAL PROVISIONS INVOLVED ........................3 STATEMENT OF FACTS ...................... 4 SUMMARY OF ARGUMENT ..................................................... 5 ARGUMENT ................................................................................. 7 I. THE ISSUE ....................................................... 7 II. THE TRIAL COURT VIOLATED THE SELF-INCRIMINATION CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION WHEN IT GAVE AN INSTRUCTION TO THE JURY CON CERNING THE PETITIONER’S FAILURE TO TESTIFY AT HIS CRIMINAL TRIAL, AFTER PETITIONER OBJECTED TO THE GIVING OF THIS INSTRUCTION PRIOR TO THE CHARGE TO THE JURY ............... .............. 8 III. THE TRIAL COURT VIOLATED THE “ASSISTANCE OF COUNSEL” CLAUSE OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION WHEN IT GAVE AN INSTRUCTION TO THE JURY CONCERNING PETITIONER’S FAILURE TO TESTIFY AT HIS CRIMI NAL TRIAL, AFTER PETITIONER OB JECTED TO THE GIVING OF THIS INSTRUCTION PRIOR TO THE CHARGE TO THE JURY ...............................................................14 CONCLUSION ..............................................................................21 35 TABLE OF AUTHORITIES Constitutional Provisions Involved: Amendment V .........................................................................passim Amendment VI ......................................................................passim Amendment XIV ................................ 3,15 Oregon Revised Statutes: ORS 162.155 ................................................ .............................. 1,4 Cases: Brooks v. Tennessee, 406 U.S. 605 (1972) .................. 17,18,20 Bruno v. U.S., 308 U.S. 287 ................................................ 10,12 Gedders v. U.S., 425 U.S. 80, 88 (1976) ....................... 6,19,20 Griffin v. California, 380 U.S. 609 (1965) .................... 6,8,9,11 Gross v. State, 306 N.E.2d 371 (Ind. Supp., 1974) ............... 10 Herring v. New York, 422 U.S. 853 (1975) 15 Mengarelli v. U.S. Marshall, 476 F.2d 617 (CA 9, 1973) 12 People v. Hampton, 394 Mich. 437, 321 N,W.2d 655 (1975) .............................................................................. 11 People v. Horrigan, 253 Cal. App. 2d 519, 61 Cal. Rptr. 821 (1967) .................................................................... 12 People v. Molano, 253 Cal. App. 2d 841, 61 Cal. Rptr. 821 (1967) ............................................. 9 Russell v. State, 240 Ark. 97, 309 S.W.2d 213 (1966) ...................................................................................... 12 State v. Baxter, 51 Haw. 57, 454 P.2d 366 (1969) ............... 12 State v. Hale, 22 Or. App. 144, 537 P.2d 1173 (1975) ...................................................................................... 12 State v. Kimball, 176 N.W.2d 864 (Iowa, 1970) .................... 11 State v. Lakeside, 25 Or. App. 539, 549 P.2d 1287 (1976) ...................................................................................... 2 State v. White, 285 A.2d 832 (Me. 1972) ................................... 12 (ii) 36 (Hi) Page U.S. v. Ash, 413 U.S. 305 (1973) .................... 15 U.S. v. McGann, 431 F.2d 1104 (CA 5, 1970) 12 U.S. v. Rimanich, 422 F.2d 817 (CA 7, 1970) 12 U.S. v. Schwartz, 398 F.2d 464 (CA 7, 1968) ...........................12 U.S. v. Smith, 392 F.2d 302 (CA 4, 1968) ......................... 12 Villines v. State, 492 P.2d 343 (Okla. Ct. of Crim. Appeals, 1971) ......................................................................12 37 IN THE Supreme Court of tbe ©niteb States OCTOBER TERM, 1977 No. 76-6942 ENSIO RUBEN LAKESIDE, Petitioner, v. OREGON, Respondent. ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF OREGON BRIEF OF PETITIONER CITATION TO OPINION BELOW Petitioner was charged with Escape in the Second Degree, Oregon Revised Statutes, 162.155. Petitioner was tried on September 25 and 26, 1975, and was found guilty by a jury. He was sentenced on October 1, 1975. Petitioner appealed the judgment of the trial court to the- Oregon Court of Appeals. 39 2 The Oregon Court of Appeals reversed petitioner’s conviction in S ta te o f O regon v. E nsio R u b e n Lakeside, 25 Or. App. 539, 549 P,2d 1287 (1976). The State of Oregon petitioned the Oregon Supreme Court for review of the opinion of the Court of Appeals and review was granted. The Oregon Supreme Court reinstated petitioner’s conviction and reversed the decision of the Oregon Court of Appeals, with one Justice dissenting, S ta te o f O regon v. Ensio R u b e n Lakeside, 277 Or. 569, 561 P.2d 612 (1977). On April 12, 1977, a petition for rehearing was denied without opinion. JURISDICTION The jurisdiction of this Court is invoked under 28 U.S.C., Section 1257(3). QUESTION PRESENTED Is it a violation of the Self-Incrimination Clause of the Fifth Amendment to the United States Constitution and a violation of a defendant’s Right to Counsel, guaranteed by the Sixth Amendment to the United States Constitution, for a trial court to comment on a defendant’s failure to testify at his trial, by giving a jury instruction concerning this fact, after a defendant has made a timely objection to the giving of this instruction prior to the charge to the jury? 40 3 CONSTITUTIONAL PROVISIONS INVOLVED The Constitutional provisions involved in this petition are the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. Amendment V. “No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of his life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” Amendment VI. “In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been pre viously ascertained by law, and to be informed of the nature of the cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.” Amendment XIV. “Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due 41 4 process of law; nor deny to any person within its jurisdiction equal protection of the laws . . STATEMENT OF FACTS Petitioner was charged with Escape in the Second Degree, ORS 162.155. Petitioner stood trial on September 25 and 26, 1975. As part of his trial strategy, petitioner did not take the stand, and petitioner’s counsel was careful to avoid any mention of this fact in voir dire or opening and closing arguments. Prior to instructing the jury, the trial court met with counsel in chambers. At that time the trial court informed counsel that it intended to give the following instruction: “Under the laws of this State, a defendant has the option to take the witness stand to testify in his of her own behalf. If a defendant chooses not to testify, such a circumstance gives rise to no inference or presumption against the defendant, and this must not be considered by you in determining the question or guilt or innocence.” Petitioner’s counsel informed the Court that he did not want the instruction read to the jury. The trial court gave the instruction to the jury despite this timely objection. [Tr. 231] Following the charge to the jury the following took place: “THE COURT: Motion for mistrial will be denied. “Does the defendant have any further ex ceptions? “MR. MARGOLIN: Yes, I have one exception. 42 5 “I made this in chambers prior to the closing statement. I told the Court that I did not want an instruction to the effect that the defendant doesn’t have to take the stand, because I felt that that’s like waving a red flag in front of the jury, so I do have an exception to the instruction given to the effect that the defendant doesn’t have to take the stand, and that that should not be considered against him. “THE COURT: The defendant did orally request the Court just prior to instructing that the Court not give the usual instruction to the effect that there are no inferences to be drawn against the defendant for failing to take the stand in his own behalf. “The Court felt that it was necessary to give that instruction in order to properly protect the defendant, therefore, the defendant may have his exception.” [Tr. 235] Petitioner was convicted and appealed his case to the Oregon Court of Appeals which reversed his conviction on June 1, 1976. The Oregon Supreme Court took review and reversed the Oregon Court of Appeals in a decision filed on March 17, 1977. On October 11, 1977, this Court granted petitioner’s Petition for Writ of Certiorari. SUMMARY OF ARGUMENT The Fifth Amendment to the United States Constitu tion states that a defendant in a criminal case cannot be compelled to be a witness against himself. This Court has held that it is a violation of this Fifth Amendment right for a prosecutor or trial judge to comment on the 43 6 failure of a defendant to testify at his trial if the defendant chooses to exercise his Fifth Amendment privilege. G riffin v. California, 380 U.S. 609 (1965). The Sixth Amendment to the United States Constitu tion guarantees the assistance of counsel for those on trial for a criminal charge. This Court has long recognized that “the role of counsel is important precisely because ordinarily a defendant is ill-equipped to understand and deal with the trial process without a lawyer’s guidance.” G edders v. U n ited S ta tes, 425 U.S. 80, 88 (1976). One of the most important decisions a criminal defendant makes is the decision not to testify at his trial. In the case at bar, petitioner, an indigent layman, was appointed counsel to advise him, among other things, whether or not to take the stand in his defense. It was decided that petitioner would not testify and no comment was made concerning this fact in voir dire, opening argument or closing argument so as not to call attention to petitioner’s failure to testify. Every criminal case has a different set of facts. The trial judge sees these facts in the sterile atmosphere of the courtroom. Defense counsel lives with the case and is privy to information, for instance attorney-client communications, of which the trial judge is never aware. Competent trial counsel is much better equipped to decide trial strategy than a trial judge who enters the case only on the day of trial. When petitioner s counsel asked the trial court not to give the “failure to testify” instruction he was providing the assistance of counsel of which the Sixth Amendment speaks. Petitioner’s counsel concluded that giving the “failure to testify” instruction would be “like waving a red flag 44 7 in front of the jury” and, as such, would constitute the type of comment on petitioner’s failure to testify that is constitutionally prohibited. When the trial court gave the instruction it interfered with the guidance provided by counsel and it violated petitioner’s Right to Counsel guaranteed by the Sixth Amendment to the United States Constitution. The giving of the instruction constituted a comment on the exercise of petitioner’s right to be free from Self-Incrimination and it violated a right guaranteed to petitioner by the Fifth Amendment to the United States Constitution. ARGUMENT I. THE ISSUE The issue raised by petitioner in this case is very narrow. The issue is whether it is a violation of the Self-Incrimination Clause of the Fifth Amendment to the United States Constitution and the Right to Counsel guaranteed by the Sixth Amendment to the United States Constitution for a trial judge to instruct the jury concerning the failure of a defendant to testify when defense counsel has objected to the giving of this instruction prior to the charge to the jury. This is not a case where no objection is made prior to the giving of the “failure to testify” instruction and the Court gives such an instruction sua spon te . This is not a case where the Court gives such an instruction sua 45 8 sp o n te and objection is made after the instruction is given. This is not a case where one co-defendant asks for the instruction and the other co-defendant objects. II. THE TRIAL COURT VIOLATED THE SELF-INCRIMINATION CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION WHEN IT GAVE AN INSTRUCTION TO THE JURY CON CERNING THE PETITIONER’S FAILURE TO TESTIFY AT HIS CRIMINAL TRIAL, AFTER PETITIONER OBJECTED TO THE GIVING OF THIS INSTRUCTION PRIOR TO THE CHARGE TO THE JURY. The Fifth Amendment to the United States Constitu tion states that: “No person shall be . . . compelled in any criminal case to be a witness against himself . . .” In G riffin v. California, 380 U.S. 609 (1965), the defendant did not testify at trial. The prosecutor commented to the jury on the failure of the defendant to testify. The trial judge instructed the jury that the defendant had a constitutional right not to testify but went on to say that the jury could consider this failure to testify as evidence bearing on the question of whether or not he was guilty of the crime charged. This Court reversed the defendant’s conviction holding that the Fifth Amendment to the United States Constitution forbids either comment by the prosecution on the accused’s silence or instructions by the Court that such silence is evidence of guilt. 46 9 Several courts have reached the conclusion, either in a holding or in dicta, that it is error for a court to instruct a jury concerning the failure of a defendant to testify when defense counsel has made a timely objection to the giving of the instruction. In P eople v. M olano, 253 Cal. App. 2d 841, 61 Cal. Rptr. (1967), an instruction identical in content to the instruction given in the case at bar was read to the jury over objection of defense counsel. The California Court of Appeals, Second District, Division Four held that: “Since G riffin v. S ta te o f California, (Apr. 1965) 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106, either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt, are forbidden. Defendant contends, and we believe correctly so, that to give this instruction when he did not want it to be given was tantamount to making a ‘comment’ proscribed by G riffin. The argument being that such an instruction highlights and emphasizes the fact that the accused did not take the stand. “Particularly apt here, we believe, is the comment of Mr. Justice Douglas in his dissenting opinion in U nited S ta tes v. G ainey, (Mar. 1965) 380 U.S. 63, 73 . . . ‘Just as it is important for counsel to argue from the defendant’s silence, so is it im proper fo r th e trial jud g e to call a tte n tio n to th e fa c t o f d e fe n d a n t’s silence. Indeed, under 18 U.S.C. Section 3481, the defendant is entitled as a matter of law to have the trial judge expressly tell the jury that it must not attach any importance to the defendant’s failure to testify; or i f the d e fe n d a n t sees f i t , he m ay choose to have n o m e n tio n m ade o f his silence b y anyone. 47 10 B runo v. U n ited S ta tes, 308 U.S. 287, 60 S. Ct. 198, 84 L. Ed. 257’ [Emphasis added]” Id., 61 Cal. Rptr. at 824-825. In Gross v. S ta te , 306 N.E.2d 371 (1974) the Indiana Supreme Court reversed an armed robbery conviction when the trial court gave the “failure to testify” instruction over objection of defense counsel. That court held: “The decision to remain silent is an often used trial tactic. For one reason or another, the accused and his counsel decide that the accused’s interests will best be served by exercising Fifth Amendment prerogatives. In order for the privilege to be fully utilized, it is essential that no aspersion whatsoever be cast upon the accused for his failure to testify. Thus, it is necessary to closely regulate all judicial (as well as prosecution) statements regarding the accused’s silence. “We .do not believe that all such judicial comments are violative of Fifth Amendment rights. However, we do believe that the accused should request any instruction which requires the jury not to draw negative inferences from an accused’s silence or co n se n t (either expressly or impliedly) to the giving of the instruction. If, as a trial tactic, the defense determines that such an instruction would assist its case, he may request the judge to so instruct. Furthermore if the judge sua sp o n te offers to give the instruction, and the defense fails to object, the defense will be deemed to have consented to its submission. However, if the judge states his intentions to submit the instruction and the defense does object, the giving of the instruction constitutes an invasion of Fifth Amend ment rights and judicial error.” Id., at 372-373 48 11 In S ta te v. K im b a ll, 176 N.W.2d 864 (1970) the Iowa Supreme Court reversed for reasons unrelated to this appeal. However, the court did discuss the issue raised here. “It is not claimed the instruction given is an erroneous statement of the law. It is claimed to be prejudicial because it calls the jury’s attention to defendant’s failure to take the stand. * * * “We must recognize, however, that the in struction is a comment on defendant’s failure to testify even though it is supposedly for defendant’s benefit and is designed to keep the jury from speculating on the reasons for his failure to take the stand and drawing improper inferences there from. There are those who believe the instruction is more harmful than helpful and regardless of how favorably to the accused the instruction may be worded it may inadvertently cause the jurors to consider certain adverse inferences which would not otherwise have entered their minds. “Because of the divergent opinions in this sensitive area and as the giving of even a cautionary instruction favorable to defendant may violate the spirit of Griffin v. State of California, supra., we believe it is advisable for us to take a definitive position on this issue. We now hold that such instruction should not be given in any future trial unless it is requested by defendant, and that it would be considered error if it is given, absent such request, in any trial started after the date this opinion is filed.” Id., at 869. Other cases have held, without discussing the Fifth Amendment, that it is reversible error for a court to give the instruction over objection: People v. H am pton , 49 12 394 Mich. 437, 321 N.W.2d 655 (1975); R u sse ll v. S ta te , 240 Ark. 97, 398 S.W.2d 213 (1966); Villines v. S ta te , 492 P.2d 343 (Okla. Ct. of Crim. Appeals 1971). See also, S ta te v. W hite, 285 A.2d 832 (Me. 1972); U nited S ta tes v. S m ith , 392 F.2d 302 (CA 4, 1968); M engarelli v. U n ited S ta tes M arshall, 476 F.2d 617 (CA 9, 1973); P eople v. H orrigan, 253 Cal. App. 2d 519, 61 Cal. Rptr. 403 (Ct. of App., 4th Dist., Division 2, 1967). Under Federal law, B runo v. U n ited S ta tes, 308 U.S. 287 (1959) and the law of the State of Oregon, S ta te v. Hale, 22 Or. App. 144, 537 P.2d 1 173 (1975) a defendant has an absolute right to have the “failure to testify” instruction given if he requests it. Several courts which have held contrary to petitioner’s position have done so under the mistaken belief that the instruction is always helpful rather than prejudicial to a defendant, U nited S ta tes v. S ch w a rtz , 398 F.2d 464, 469 (CA 7, 1968) cert. den. 393 U.S. 1062 (1969); U nited S ta tes v. R im a n ich , 422 F.2d 817, 818 (CA 7, 1970); U nited S ta tes v. M cG ann, 431 F.2d 1104, 1109 (CA 5, 1970), or because the court “cannot see how an identical instruction will affect the jury differently by the fact that unbeknown to it, in one case there was an objection and in the other there was not” , S ta te v. B axter, 51 Haw. 57, 454 P.2d 366, 367 (1969). The wording of the instruction is not at issue here. Prejudice arises when the instruction is read in a situation where it should not be read, thus calling attention to the fact that defendant has stood mute. Each criminal case has a different set of facts. Under certain circumstances it is advantageous to have the trial court instruct the jury concerning the defendant’s 50 13 failure to testify. If the defendant can not take the stand for some reason and there is evidence in the trial that can only be explained by the defendant, then defense counsel would want to have a “failure to testify” instruction given to the jury in hopes that they will not hold the defendant’s failure to testify against him. Under other circumstances, it is extremely disad vantageous to have a “failure to testify” instruction given. Suppose that defendant puts on an alibi defense and produces several witnesses to testify that the defendant was at some place other than at the scene of the crime at the time that the crime was committed. Furthermore, assume that the defendant has a lengthy criminal record, including convictions for the crime charged, and makes a bad appearance on the stand. Since the defendant would add nothing to the testimony of the alibi witnesses and would injure his cause by taking the stand, trial strategy dictates that defense counsel not put defendant on the stand and try to call as little attention as possible to defendant’s failure to take the stand. If the defendant’s witnesses supply all the information that the defendant would supply had he taken the stand, the jury will probably not think too much of the defendant’s failure to take the stand. Under such circumstances, a defense counsel would not want to have the failure of the defendant to take the stand highlighted by the giving of an instruction concerning this fact. Instructing the jury under these circumstances amounts to waving a red flag in front of the jury concerning the fact that the defendant has failed to give his side of the story. 51 14 The giving of an identically worded “failure to testify” instruction can be harmful or helpful depending on the facts of the individual case. Defense counsel, if competent, is the best person to determine when the instruction would be helpful and when it would be prejudicial. If a judge gives the instruction after objection in a case where giving it would be prejudicial, giving the instruction constitutes a “comment” on the failure of the defendant to testify and is as harmful to a defendant’s position as an illegal comment by the prosecutor about this fact. III. THE TRIAL COURT VIOLATED THE “AS SISTANCE OF COUNSEL” CLAUSE OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION WHEN IT GAVE AN INSTRUCTION TO THE JURY CONCERNING PETITIONER’S FAILURE TO TESTIFY AT HIS CRIMINAL TRIAL, AFTER PETITIONER OBJECTED TO THE GIVING OF THIS INSTRUCTION PRIOR TO THE CHARGE TO THE JURY. The Sixth Amendment to the United States Constitu tion states that: “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” “The decisions of [the United States Supreme Courtj have not given to [the constitutional provisions of the Sixth Amendment] a narrow literalistic construction. More specifically, the right 52 15 to the Assistance of Counsel has been understood to mean that there can be no restriction upon the function of counsel in defending a criminal prosecution in accord with the traditions of the adversary fact finding process that has been constitutionalized in the Sixth and Fourteenth Amendments . . . the right to Assistance of Counsel has thus been given a meaning that ensures to the defense in a criminal trial the opportunity to participate fully and fairly in the adversary fact finding process.” H erring v. N ew Y ork, 422 U.S. 853, 857-858 (1975) In U n ited S ta tes v. A sh , 413 U.S. 305 (1973), this Court discussed the historical background of the Sixth Amendment: “A concern of more lasting importance was the recognition and awareness that an unaided layman had little skill in arguing the law or coping with an intricate procedural system. The function of counsel as a guide through complex legal technical ities long has been recognized by this court. Mr. Justice Sutherland’s well-known observations in [Powell v. Alabama, 287 U.S. 45 (1932)] bear repeating here: ‘Even the intelligent and educated layman has small and sometimes no skill in the science of the law. If charged with crime he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he has a perfect one. He requires the guiding hand of counsel at every 53 16 step of the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.’ 287 U.S., at 69. “The Court frequently has interpreted the Sixth Amendment to assure that the ‘guiding hand of counsel’ is available to those in need of its assistance . . ” Id., at 307-308 Later on this Court stated that: “ . . . Mr. Justice Black, writing for the Court in Jo h n so n v. Z erbst, 304 U.S. 458, 462-463 (1938), spoke of this equalizing effect of the Sixth Amendment’s counsel guarantee: ‘It embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.’ “This historical background suggests that the core purpose of the counsel guarantee is to assure ‘Assistance’ at trial, when the accused was confronted with both the intricacies of the law and the advocacy of the public prosecutor.” Id., at 309 Petitioner, an indigent layman, had to have counsel appointed so that he might have the benefit of the advice of someone trained in the law at his trial. One of the most important decisions a criminal defendant makes is the decision not to testify at his trial. Petitioner, with the help of his counsel, decided that it would be adverse to his interests to testify at his trial. As part of his trial strategy, no comment was made concerning petitioner’s failure to take the stand in voir 54 17 dire and opening or closing arguments so as not to highlight this fact. Every criminal case has a different set of facts. A trial judge sees these facts in the sterile atmosphere of the courtroom. Defense counsel lives with a case and is privy to information, for instance attorney-client communications, of which the trial judge is never aware. Competent trial counsel is much better equipped to decide trial strategy than a trial judge who enters the case for the first time on the day set for trial. When the trial court gave the objected to instruction, it called attention to the fact that petitioner had not testified and destroyed all of the possible benefits that might have enured to petitioner because of his trial strategy. Additionally, had petitioner’s counsel known that the trial court was going to “comment” on his client’s failure to testify, he might have changed his strategy and voir dired the jury on the effect that petitioner’s not testifying would have on its deliberation. He might also have commented on this fact in his opening and closing statements. In B ro o ks v. Tennessee, 406 U.S. 605 (1972) this Court held that a Tennessee statute that required a defendant in a criminal case to testify before any other witness for the defense if he was to testify at all was unconstitutional because it restricted the right of counsel to decide whether, and when, the accused should take the stand during his trial. In arriving at that decision, this Court stated: “Whether the defendant is to testify is an important tactical decision as well as a matter of ' constitutional right. By requiring the accused and his lawyer to make that choice without an 55 18 opportunity to evaluate the actual worth of their evidence, the statute restricts the defense — particularly counsel — in the planning of its case. Furthermore, the penalty for not testifying first is to keep the defendant off the stand entirely, even though as a matter of professional judgment his lawyer might want to call him later in the trial. The accused is thereby deprived of the ‘guiding hand of counsel’ in the timing of this critical element of his defense. While nothing we say here otherwise curtails in any way the ordinary power of a trial judge to set the order of proof, the accused and his counsel may not be restricted in deciding whether, and when in the course of presenting his defense, the accused should take the stand.” Id., at 612-614 In the case at bar, we are dealing with another important tactical decision concerning the same consti tutional right discussed in B rooks. In B ro o ks, the question was when or whether the defendant should testify. In this case, the question for counsel is, once a defendant has decided to exercise the right not to testify, how best to deal with the jury concerning this fact. In B rooks, this court decided that trial judges ordinarily have the power to set the order of proof but, because an important constitutional consideration was present, the trial judge did not have the power to interfere with a trial strategy decision concerning whether or when the defendant would take the stand. In the case at bar, because of the constitutional considerations involved, this Court should hold that the trial judges power to decide how to instruct the jury should not extend to situations where a defendant and his attorney have decided, as a matter of strategy, that no instruction concerning the defendant’s exercise of 56 19 his Fifth Amendment constitutional right not to testify should be given. In G edders v. U n ited S ta tes, 425 U.S. 80 (1976) this Court concluded that a trial court’s order directing a defendant not to consult with his attorney during a regular overnight recess, called while the defendant was on the stand as a witness and shortly before cross-examination was to begin, deprived the defendant of the assistance of counsel guaranteed him by the Sixth Amendment. In its opinion, this Court said: “The judge’s power to control the progress and, within the limits of the adversary system, the shape of the trial includes broad power to sequester witnesses before, during and after their testimony . . .” Id., at 87 However, this Court concluded: “But the petitioner was not simply a witness; he was also the defendant . . . “The recess at issue was only one of many called during a trial that continued over, ten calendar days. But it was an overnight recess, seventeen hours long. It is common practice during such recesses for an accused and counsel to discuss events of the day’s trial. Such recesses are often times of intensive work, with tactical decisions to be made and strategies to be reviewed. The lawyer may need to obtain from his client information made relevant by the day’s testimony, or he may need to pursue inquiry along lines not fully explored earlier. At the very least, the overnight recess during trial gives the defendant a chance to discuss with counsel the significance of the day’s events. Our cases recognize that the role of counsel is important precisely because ordinarily a de fendant is ill-equipped to understand and deal with 57 20 the trial process without a lawyer’s guidance.” Id., at 88-89 . . To the extent that conflicts remain be tween the defendant’s right to consult with his attpmey during a long overnight recess in the trial, and- the prosecutor’s desire to cross-examine the defendant without the intervention of counsel, with the risk of improper ‘coaching,’ the conflict must, under the Sixth Amendment be resolved in favor of the right to the assistance and guidance of counsel. Brooks v. Tennessee, 406 U.S. 605 (1972)” Id., at 91 In B rooks, this Court held that there are limits on the trial judge’s ordinary power to control the order of proof. In Gedders, this Court held that there are limits on the trial judge’s ordinary power to sequester witnesses. The factor in Gedders, and one of the factors in B rooks, that led to this Court’s decision in those cases was the existence of a situation where the exercise of the ordinary powers of the trial court interfered with a defendant’s Sixth Amendment right to have the assistance of counsel in plotting trial strategy. It would make no sense for this Court to hold in G edders that the right to consult with counsel is so important that a conviction must be reversed to preserve it and then rule in the case at bar that after the constitutionally protected consultation has occurred, a trial judge is free to interfere with the strategy arrived at when there is no legal basis for doing so and when the strategy concerns something as important as the exercise of the Fifth Amendment protection against Self-Incrimination. 58 21 IV. CONCLUSION For all the foregoing reasons, petitioner asks the Court to reverse petitioner’s conviction. Respectfully submitted, PHILLIP M. MARGOLIN A tto r n e y fo r P e titio n er 59 3n tfje Supreme Court of tfje Unite!) States OCTOBER TERM, 1977 No. 76-6942 ENSIO RUBEN LAKESIDE, v. STATE OF OREGON, Petitioner, Respondent. On Writ of Certiorari to the Supreme Court of the State of Oregon BRIEF FOR RESPONDENT JA M ES A. REDDEN A ttorney G eneral of Oregon AL J . LAUE Solicitor G eneral THOMAS H. DENNEY A ssistan t A ttorney G eneral S ta te Office B uilding Salem , O regon 97310 Phone: (503) 378-4295 C ounsel fo r R espondent 61 TABLE OF CONTENTS Opinions Below ............................... Jurisdiction ...................................... Question Presented ......................... Constitutional Provisions Involved Statement of Facts .......................... Summary of Argument .......... . Argument ......................................... Conclusion ........................................ Page 1 1 1 1 2 2 3 11 TABLE OF AUTHORITIES Cases Cited Brooks v. Tennessee, 406 U.S. 605 (1972) ............. 10 Bruno v. United States, 308 U.S. 287 (1939)........................................................ 2, 3, 4, 5, 7 Bruton v. United States, 391 U.S. 123 (1968) .... . 7 Frazier v. Cupp, 394 U.S. 731 (1969) ...................... 8 Gedders v. United States, 425 U.S. 80 (1976) ........ 10 Griffin v. California, 380 U.S. 609 (1965) ......... 2, 5, 6 State v. Hickmann, 273 Or. 358, 540 P.2d 1406(1975).............. .......................... .................. 9 Statutes 18 U.S.C. § 3481 (former 28 U.S.C. § 632) ............. 3 ,5 63 In the Supreme Court of the United States OCTOBER TERM, 1977 No. 76-6942 ENSIO RUBEN LAKESIDE, . Petitioner, v. STATE OF OREGON, Respondent. On Writ of Certiorari to the Supreme Court of the State of Oregon BRIEF FOR RESPONDENT OPINIONS BELOW Petitioner’s statement is accepted. JURISDICTION Petitioner’s statement is accepted. QUESTION PRESENTED Does the giving of a jury instruction in a criminal case, over the defendant’s objection, that no inference may be drawn from the fact that the defendant did not testify violate either the privilege against self incrimination guaranteed by the Fifth Amendment or the right to assistance of counsel guaranteed by the Sixth Amendment? CONSTITUTIONAL PROVISIONS INVOLVED Petitioner’s statement is accepted. 65 2 STATEMENT OF FACTS Petitioner’s statement of facts is accepted. SUMMARY OF ARGUMENT This Court has previously indicated, in Bruno v. United States, 308 U.S. 287 (1939), that the giving of a jury instruction that no inference is to be drawn from the fact that the accused in a criminal case did not testify does not violate the privilege against self incrimination, and that whether or not such an in struction shall be given is not a question of Constitu tional dimensions. Nothing in Griffin v. California, 380 U.S. 609 (1965), suggests otherwise, and this Court should so hold expressly. To hold otherwise suggests an unwarranted lack of faith in the jury’s ability to draw no inference from the accused’s silence and unnecessarily diminishes the function of the trial judge, by removing from him, and giving to the accused, the right to determine how the jury should be instructed on a particular subject. Assuming, arguendo, that petitioner’s S ixth Amendment claim is properly before the Court, it should be rejected. The accused’s Constitutional right to have the assistance of counsel in formulating and exercising his trial strategy does not extend so- far as to give him total control over the manner in which the jury is to be instructed concerning the consequences of that strategy, and it should not be so extended here. 66 3 ARGUMENT I Respondent has relatively little to add to the extensive opinion of the Oregon Supreme Court in this case, rejecting petitioner’s claim that the Self- Incrimination Clause of the Fifth Amendment entitles the accused in a criminal case to prevent the trial judge from instructing the jury to draw no inference of guilt or innocence from the fact that the accused did not testify, even though the judge believes the instruc tion necessary. However, some additional argument may be in order concerning the two previous decisions of this Court which bear most directly on the issue. In Bruno v. United States, 308 U.S. 287 (1939), the Court held that the accused in a federal criminal case is entitled, upon request, to have the jury instructed, in substance, that no inference is to be drawn against him from the fact that he did not testify. While it appears that counsel for Bruno argued that such an instruction was required not only under federal stat ute, but also under the Fifth Amendment (see 308 U.S. at 288), the Court’s opinion seems to be based solely on its construction of the statute (then 28 U.S.C. § 632, now 18 U.S.C. § 3481) making the defendant in a federal criminal case a competent witness in his own behalf. And while the Government argued that such an instruction was properly refused, because if given, 67 4 it would have prejudiced Bruno by calling the jury’s attention to the fact that he had not testified (see 308 U.S. at 290), the Court, speaking through Mr. Justice Frankfurter, said (a) that the defendant "should be allowed to make his own choice [of whether or not to assume that risk] when an Act of Congress authorizes him to choose” (308 U.S. at 294), and (b) that the Court was not prepared to make "a dogmatic assumption that jurors, if properly admonished, neither could nor would heed the instructions of the trial court that the failure of an accused to be a witness in his own cause 'shall not create any presumption against him.’ ” {Id.). We note in passing that, unlike the instruction requested in Bruno,1 the instruction given in the present case does not use the word "failure,” or any similar verbiage which arguably might suggest that there is a duty on the part of the accused which he has somehow "failed” to discharge. Instead, it speaks of an "option” which the defendant may or may not exercise as he "chooses” (see Pet. Br. 4; App. 4), and thus would appear to be more neutrally worded, and therefore preferable, to the precise instruction considered in Bruno. 1 "The fa ilu re of any defendant to tak e th e w itness stand and testify in h is own behalf, does not create any presum ption against him; th e ju ry is charged th a t i t m ust not perm it th a t fact to w eigh in th e slightest degree against any such defendant, nor should th is fact en te r into th e discussions or deliberations of the ju ry in any m anner.” 308 U.S. a t 292. 68 5 More importantly, we submit that, in the context of the present case, Bruno suggests, if it does not hold, that (a) the giving of an instruction that no inference is to be drawn from the fact that an accused did not testify cannot be said to infringe upon the privilege against self-incrimination, because it should not be assumed that a jury is incapable of following such an instruction, and Ob) the extent to which the accused may have control over whether or not such an instruc tion shall be given is also not a matter of Constitution al right, but a matter which is subject to regulation, either by the courts of a particular jurisdiction or by a statute thereof, such as present 18 U.S.C. § 3481. In Griffin v. California, 380 U.S. 609 (1965), the Court, speaking through Mr. Justice Douglas, held that "the Fifth Amendment, in its direct application to the Federal Government, and in its bearing on the States by reason of the Fourteenth Amend ment, forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” 380 U.S. at 615. The Court expressly noted that it was reserving decision "on whether an accused can require, as in Bruno v. United States, 308 U.S. 287, that the jury be instructed that his silence must be disregarded.” (Id. at n. 6). Necessarily, it would seem, the Court also reserved 69 6 decision on the question of whether the accused can, as a matter of Constitutional right, prevent such an instruction from being given. The resolution of petitioner’s Fifth Amendment claim in the present case depends, it would seem, upon the breadth to be given to the Court’s holding in Griffin. If, as some courts have reasoned (we think correctly), Griffin holds, in this context, only that the Fifth Amendment prohibits the giving of an instruc tion which tells the jury that they may infer guilt from the accused’s silence, an instruction which tells the jury to draw no such inference is not only proper, but even beneficial to the accused. If, on the other hand, Griffin is to be understood broadly, as giving the fullest possible meaning to the accused’s privilege against self-incrimination, it can be argued that Grif fin confers upon the accused the right to decide whether or not any mention should be made, in any context, of his failure to testify. We submit that the latter view is not sound Constitutional doctrine and should not be adopted by this Court. In doing so, we hasten to point out that we are not arguing the wisdom, as a matter of any given jurisdiction’s policy, of giving the accused his choice as to whether or not to have the jury instructed that no inference should be drawn from his silence. We are only arguing that such a policy is not mandated by the Constitution. 70 7 At bottom, the view that the privilege against self-incrimination confers upon the accused the right to decide whether or not a jury instruction shall be given concerning his failure to testify necessarily rests upon the premise, whether spoken or unspoken, that any instruction which calls the jury’s attention to the fact that the accused has not testified, no matter how favorably to him the instruction may be worded, may cause the jury to draw inferences adverse to him, and that the accused in any particular case is therefore entitled, as a matter of Constitutional right, to decide whether the instruction should be given. This premise should not be adopted. Viewed from one standpoint, it expresses a lack of trust in the jury system that has seldom been acknowledged openly by any court. It assumes that a jury cannot, or will not follow an instruction given to it. The suggestion that such an assumption is applicable to the instruction challenged in this case was, we submit, explicitly rejected by this Court in Bruno v. United States, supra, and we submit that the Court should not adopt it now. While this Court has doubted, since Bruno was de cided, that a jury can follow an instruction to consider certain evidence as bearing on the guilt of one co defendant, but disregard that evidence as to another,2 its subsequent decision holding that a jury can follow 2 Bruton v. United States, 391 U.S. 123 (1968). 71 8 an instruction that the statements of counsel are not evidence and should therefore be disregarded3 is more in accord with the basic faith in the jury on which our judicial system rests. A similar holding is in order here. Viewed from another standpoint, a holding that the Fifth Amendment entitles the defendant or his counsel, and no one else, to decide whether or not the jury should be instructed concerning the accused’s failure to testify would remove from the trial judge a portion of his function as a neutral arbiter and give it to one of the two sides contending against each other as adversaries. We submit that diminishing the func tion of the trial judge is not desirable as a matter of general policy, and that the need for doing so in this specific area has not been demonstrated by petitioner. II In addition to his Fifth Amendment claim , petitioner argues that the Right-to-Counsel Clause of the Sixth Amendment guarantees the accused in a criminal case, or his counsel, the right to decide, as a matter of trial strategy, not only whether or not the accused will testify, but also whether or not the jury should be instructed concerning the accused’s failure to testify, and that any action taken by the trial judge contrary to the accused’s desires on the latter point 3 Frazier v. Cupp, 394 U.S. 731, 735 (1969). 72 9 therefore interferes with the accused’s Constitutional ly protected right to counsel. As petitioner acknowl edged in his petition for rehearing in the Oregon Supreme Court (App. 27-28), he did not make this claim in his brief in the state appellate courts, but urged it for the first time on oral argument before the Oregon Court of Appeals. Neither that court nor the Oregon Supreme Court specifically addressed this claim, possibly because of the courts’ rules against noticing contentions not fairly raised in the trial court and set forth in the briefs of the parties. Cf. State v. Hickmann, 273 Or. 358, 540 P.2d 1406 (1975).4 For this reason, we do not concede that petitioner’s Sixth Amendment claim is properly before this Court. In any event, however, the claim should be rejected. The gist of petitioner’s Sixth Amendment argu ment seems to be that any trial court ruling which interferes with defense counsel’s tactics or strategy deprives the accused of the effective assistance of counsel, to the extent of that interference and to the extent that the interference is erroneous. This reason 4 In H ickm ann, the S ta te appealed from an order suppressing evidence. The court of appeals vacated the order and rem anded the case to the tria l court for findings of fact concerning w hether or not defendant consented to th e police en try into h is home, a ground not relied upon by th e S ta te as a basis for upholding the search in e ither the tr ia l court or the court of appeals. The suprem e court reversed, on th e ground th a t, except where im portant considerations of public policy m ay be involved, a case on appeal should be heard on the sam e theory as th a t upon which it was presented in the court below. 7.3 10 ing would make a Sixth Amendment issue of every trial court ruling adverse to every defendant repre sented by counsel in a criminal case. Such is not the law, and neither of the cases of this Court on which petitioner primarily relies for this proposition supports such a rule. It is one thing to interfere with an accused’s right to choose when, and if, to testify, as did the statute struck down in Brooks v. Tennessee, 406 U.S. 605 (1972), or with an attorney’s right to confer with his client, as did the judge’s order condemned in Gedders v. United States, 425 U.S. 80 (1976). It is quite another to make the accused or his counsel, rather than the judge, the arbiter of how the consequences of the accused’s choice of trial strategy are to be explained to the jury, or otherwise dealt with in the courtroom. The Right-to-Counsel Clause of the Sixth Amendment does not extend to the latter, and should not be so extended under the circumstances of this case. 74 11 CONCLUSION For the above reasons, the judgment of the Supreme Court of the State of Oregon should be affirmed. Respectively submitted, JAMES A. REDDEN Attorney General of Oregon AL J. LAUE Solicitor General THOMAS H. DENNEY Assistant Attorney General Counsel for Respondent December 1977 75 LawReprints 37 WCST 20 STREET®NEW YORK. N V. 10011 publications