# Carlos Garza De Luna v. United States

> Court of Appeals for the Fifth Circuit · August 15, 1962 · 308 F.2d 140

URL: https://www.frixlaw.com/law-library/cases/9448844

## Case

- **Full name:** Carlos Garza De LUNA, Appellant, v. UNITED STATES of America, Appellee
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** August 15, 1962
- **Citations:** 308 F.2d 140; 1 A.L.R. 3d 969; 1962 U.S. App. LEXIS 4287
- **Precedential status:** Published
- **Opinion:** Concurrence by Bell
- **Judges:** Brown, Wisdom, Bell
- **Cited by:** 216 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9448844

## Opinion text

BELL, Circuit Judge
(concurring specially).
With deference to the majority, I think this matter is controlled over-all by the right to a fair trial under the Sixth Amendment to the Constitution. The right of de Luna under the Fifth Amendment, and Title 18 U.S.C.A. § 3481 , not to have the fact that he failed to testify commented upon is involved primarily. But the right of Gomez to take the stand under § 3481 and to a full and fair defense, and the right of the public to the enforcement of the criminal statutes are also involved. These rights must be balanced by the court whose duty it is to see that a fair trial is afforded while at the same time protecting all rights. And my disagreement with the majority centers around the scope of the right of Gomez.
It was proper in the defense of Gomez for his counsel to comment upon the fact that he had taken the stand, but it was improper for him to comment upon the fact that de Luna had not taken the stand. The inference which plainly would arise against de Luna by comments to the effect that Gomez testified, like the inference that arises in any event from the failure to testify, is one that must be checkmated by admonition of the court in charge. Cf. Bruno v. United States, 1939, 308 U.S. 287 , 60 S.Ct. 198 , 84 L.Ed. 257 .
There is no authority whatever for the proposition that Gomez would in any wise have been deprived of a fair trial if the comments regarding the failure of de Luna to testify had not been made. He had no right to go that far. He did have the right to testify against de Luna as he did. Rickey v. United States, 5 Cir., 1957, 242 F.2d 583 ; Rowan v. United States, 5 Cir., 1922, 281 F. 137 , cert. den., 260 U.S. 721 , 43 S.Ct. 12 , 67 L.Ed. 481 . But no presumption or inference of guilt was permissible against de Luna from the fact that he did not testify. Bradford v. United States, 5 Cir., 1942, 130 F.2d 630 , cert. den., 317 U.S. 683 , 63 S.Ct. 205 , 87 L.Ed. 547 . All comment in the presence of the jury upon his omission to testify was forbidden. Wilson v. United States, 1893, 149 U.S. 60 , 13 S.Ct. 765 , 37 L.Ed. 650 ; *156 Stewart v. United States, 1961, 366 U.S. 1 , 81 S.Ct. 941 , 6 L.Ed.2d 84 .
The charge of the court took care of the rights of both in the ordinary posture:
“The defendant Adolfo 0. Gomez has taken the stand and testified in his own behalf in this case. A defendant cannot, in a criminal case, be compelled to take the witness stand and to testify. Whether he testifies or does not testify is a matter of his own choosing.
“When, however, a defendant elects to take the witness stand and testify, then you have no right to disregard his testimony because he is accused of a crime. When a defendant does testify, he at once becomes the same as any other witness, and his credibility is to be tested by and subjected to the same tests as are legally applied to any other witness.
“In determining the degree of credibility that should be accorded by you to the defendant’s testimony, you are entitled to take into consideration the fact that he is the defendant and the very keen personal interest that he has in the result of your verdict.
“The defendant Carlos Garza de Luna has not testified in this case. You are instructed that under the law a defendant in a criminal case may take the stand and testify in his own behalf if he chooses, but the defendant is not required to testify, and you are charged that the failure of the defendant to take the stand in his own behalf in this case will not be considered by you as any evidence at all of his guilt as to the charge contained in the indictment in this case, and in your retirement you will not consider or refer to the fact that the defendant did not testify.”
The opinion of the majority will create an intolerable procedural problem. If Gomez, or others similarly situated, claims the right which the majority holds that he has to comment on the failure of de Luna to testify, a mistrial will be required at the instance of his co-defendant who did not take the stand. In addition, severance in advance-of trial may be required where there is a representation to the court that one co-defendant does not expect to take the-stand while another or others do expect to testify, and claim their right to comment upon the failure of the other to testify. This would eliminate joint trials, or vest in a defendant the right to a mistrial during final arguments, or-ín the alternative create built-in reversible error, all in the discretion of the defendants. The law contemplates no such end.
The Sixth Amendment requires a fair-trial. And the facts and circumstances as they arise must be considered. Here-counsel for Gomez was allowed to comment, over objection made, on three occasions regarding the failure of de Luna-, to take the stand. The court overruled the objection on the ground that counsel for the co-defendant, as distinguished from the prosecution, could comment. This was error. When counsel for Gomez first alluded in argument to the fact that de Luna had not taken the-stand, the objection should have been sustained, counsel admonished, and the jury instructed as to the rights of de-Luna in the premises and to disregard the remark. This would have been the-minimum corrective action to insure a-fair trial to de Luna. Because it was-not done, I join in the opinion of the majority to reverse. I do not agree that. Gomez had the right to so comment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9448844. Public record. Not legal advice.