'During the charge to the jury, the Court at no time instructed the jury as to why defendant had not taken the stand in his own behalf or that the jury was not to assume any prejudicial inferences because of his not taking the stand.'
Defendant's trial counsel testified that it is his general practice to request that such an instruction not be given. While the defendant is entitled to the instruction if it be requested, it is the custom of many competent criminal lawyers to request that no reference be made in the charge to a defendant's failure to testify, believing such an instruction emphasizes the defendant's silence and has an unfavorable, rather than a favorable, effect on the jury's verdict. Although the record of the trial does not disclose any request in court that the instruction be omitted, the trial attorney must at some time, in court or in chambers, have made such a request, as it is the practice of this court to include the instruction unless counsel specifically asks that it not be given. At the conclusion of the charge, defendant's counsel announced that he was 'satisfied.'
Paragraph 6 of the amended motion alleges:
'At the time of sentencing, on December 10, 1948, defendant attempted to speak to the Court, in order to note an appeal, in which the foregoing questions would have been raised. However, defendant was immediately sentenced and taken from the Court-room, although defendant indicated, by gestulation, that he desired to speak.'
The record shows that at the time of sentence the court accorded defendant's counsel an opportunity to speak in behalf of the defendant. The court denies that defendant attempted to speak or indicated a desire to do so. Further, defendant made no attempt to raise the 'foregoing questions' until three years after his conviction, although he had been in court on a number of occasions during the interval.
From a review of the testimony adduced at the hearing, it is apparent that the defendant's allegations are not corroborated by any credible testimony, and are contradicted by the testimony of the marshals on duty in the courtroom at the trial, as well as by the court's own very clear recollection of the trial.
Defendant's attorney vigorously urged that the testimony of the marshals was based not on any independent recollection of the specific trial, but merely on what is customary at all trials. This was effectively refuted by the testimony of the marshal stationed immediately behind the prisoner during most of the trial, that he especially recalled the defendant and the trial because he was acquainted with the defendant's sister. It is the court's view that the other marshals who testified were likely to recall the handling of this particular prisoner, because of his appearance, demeanor, and attitude, as well as his repeated returns to the court subsequent to conviction.
Aside from the testimony of the marshals and recollection of the court, it is difficult to believe defendant's present allegations in view of the fact that he has filed three other motions to vacate the sentence and judgment and two petitions for writ of habeas corpus, all of which alleged lack of due process on many grounds, but on no occasion prior to November, 1951, three years after conviction, did defendant make any of the charges included in his pending motion, at least one of which is inconsistent with an earlier statement by him under oath.
It is significant that the defendant did not repeat in this court the allegation included in one of the papers filed by him in the Court of Appeals that he was not present when the jury returned its verdict.
Weighing the credibility of defendant's testimony by the usual criteria, his manner of testifying, his demeanor on the stand, whether he appeared to be a truth-telling individual, his ability to know and recall the facts to which he testified, his criminal record, and his interest in the outcome of the motion, the court finds defendant's testimony of no probative value.
It was apparent that the defendant's wife, who also appeared as a witness in support of the motion, was endeavoring to testify in a manner which would be helpful to her husband; but many of the charges made by him were not within her knowledge, and some of the facts to which she testified did not conclude with the defendant's testimony.
Defendant cites in support of his motion Mason v. United States, 90 U.S.App.D.C. 1, 193 F.2d 23. This court does not dispute the principle followed in that decision, but holds it is inapplicable to the facts in the case at bar.
In view of the foregoing, the defendant's amended motion to vacate the sentence and set aside the judgment of conviction is denied.
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