saying that trial court erred in applying a harm analysis because the Herring case “indicated that the strength of the prosecution’s case is not a factor”
How later courts described this case
- saying that trial court erred in applying a harm analysis because the Herring case “indicated that the strength of the prosecution’s case is not a factor”
- the rule announced in Herring is a per se rule, precluding harmless error analysis
- the trial court’s refusal to permit defense counsel in an habitual criminal trial to make a final argument constituted a denial of the right to counsel
- prosecutor could not call defendant to stand to prove habitual offender status
Written by the judges who cited it.
The opinion
JOHN W. PECK, Senior Circuit Judge,
concurring.
I concur in the result reached in the majority opinion, but because that result is clearly mandated by the refusal of the trial court to permit defense counsel to make an oral argument to the jury, I see no occasion to deal with the Fifth Amendment issue on the record presented by this case.
Like my brethren, I am surprised, not to say startled, by the fact that the prosecution established an essential element of its case by calling the defendant as its own witness. Unorthodox as this procedure may be, the further fact is that the defendant was represented by counsel, and strategy considerations for interposing no objection suggest themselves. For example, keeping in mind that the element involved was whether the defendant was the individual named in the Georgia record of conviction (a formal element easily established by other, albeit more cumbersome, evidence), counsel may very well have concluded that to require the government to go the long route to establish this point could antagonize the judge and jury, whereas cooperation might well result in favorable consideration.
Present counsel argues that the failure to object establishes his predecessor’s incompetence, and suggests the possibility that that *590 predecessor did not advise the defendant of his Fifth Amendment rights. However, in the light of the entire record and particularly trial counsel’s articulate objection upon being denied the right to present oral argument, thereby preserving that issue for our review, it seems more likely that he knew exactly what he was doing, and that as a competent lawyer he fully advised his client of his rights.
I see no occasion to reach this issue, since I have reservations concerning the advisability of establishing a per se rule in this area.