UNITED STATES of America, Appellee, v. Garnett Johnnie JONES, Appellant.
No. 78-5165.
United States Court of Appeals, Fourth Circuit.
Decided Nov. 8, 1979.
608 F.2d 1004
Argued Sept. 10, 1979.
Pino further seeks reversal on the grounds that a government rebuttal witness testified about a conversation he had with the defendant. The objection stems from the refusal by the trial judge of permission to put the defendant back on the stand in surrebuttal to testify about the conversation. However, it is clear from the record that the testimony from the government‘s rebuttal witness was elicited solely through cross-examination by defendant‘s counsel, over the government‘s objection, on a collateral issue. Impeachment by contradiction would not have been proper, in any case. United States v. Lambert, 463 F.2d 552, 557 (7th Cir. 1972). Furthermore, the district judge was well within his discretion in determining that the cross-examination represented an unwarranted journey outside the confines of the direct. Pino did not seek to make the government‘s rebuttal witness his own witness, so
The defendant also objects to the refusal by the district judge, at time of sentencing, to grant a recess to permit production of character witnesses. In the circumstances of the case, the district judge did not abuse his discretion in refusing to grant the recess. The district judge had the benefit of a pre-sentence report. He stated that he would assume that character witnesses would appear and testify favorably for the defendant. He went further to state that, were such testimony received, it would at most counteract in his mind any effect of defendant‘s prior record. He further stated that he would base his sentencing decision on the pre-sentence report.
Finding no error, we affirm.
AFFIRMED.
David Dart Queen, Asst. U.S. Atty., Baltimore, Md. (Russell T. Baker, U.S. Atty., and Kurt L. Schmoke, Asst. U.S. Atty., Baltimore, Md., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, and WINTER and MURNAGHAN, Circuit Judges.
WINTER, Circuit Judge:
Convicted of bank robbery, Garnett Johnnie Jones appeals, assigning as reversible error the limited scope of the district court‘s voir dire of prospective jurors, its refusal to excuse two veniremen for cause, its instructions concerning the testimony of a witness who played a part in the crime and a witness who admitted to using drugs, and the absence of black males on the jury which rendered the verdict. We see no merit in any of these contentions, and we affirm.
I.
At trial, the evidence showed that a bank was robbed by Norman Scott and Jerry Rowell and that Jones drove the getaway car. On the morning of the robbery, Scott, Rowell and Jones met at the home of Ms. Annie Jefferson, a former paramour of Jones. They remained there for about an hour talking and drinking coffee, but according to the testimony there was no mention to her of a proposed bank robbery or any other criminal activity. When the three left, Scott and Rowell got into Jones’ car. Jones lagged behind and he told Jefferson that the three planned to rob a bank. He then also left, joined the others in his automobile and drove away.
In the time that they were gone, the bank was robbed.
The three returned within the hour and, without revealing what they had done, asked Ms. Jefferson for the use of her basement. There, Rowell testified, they divided the money and then only Rowell and Scott left the premises. Jones left a few minutes later, but Ms. Jefferson first complied with his request to look outside to see if there were any police. When Jones departed, he gave Jefferson $100 in cash.
In the jury selection process, the district court interrogated each venireman as to whether he, or any member of his family, had ever been an employee of a bank and also whether he, or a member of his family, had been a victim of an armed robbery. Notwithstanding defendant‘s request and subsequent objection, the district court declined to include the phrase “or any crime” in the latter question. In response to the questions, one venireman said that his wife was an employee of a savings and loan association (not the bank robbed in the instant case) but that she had never been robbed. A second venireman said that he had a daughter-in-law who was an employee of another bank. He knew that she had been the victim of a bank robbery but was not harmed, and he stated that he had never discussed the matter with her. The district court probed the connections with additional questions and both veniremen implied that there was nothing in the relationships which would make it difficult or impossible for them to render a fair and impartial verdict if selected to sit as a member of the jury in the instant case. The district court denied Jones’ challenge for cause to both veniremen, and defendant was forced to expend two peremptory challenges to exclude them from the jury.
When the case was submitted to the jury, defendant requested that the jury be instructed that Ms. Jefferson could be considered an accomplice and that, accordingly,
Although the petit jury which convicted defendant had three black females as members, its membership included no black males. Defendant, incidentally, sought unsuccessfully at one point to strike for cause a black male venireman, but he was not on the jury selected to serve.
II.
We do not think that there was error (a) in the district court‘s declining to interrogate prospective jurors as to whether they or a relative had been the victim of “any crime,” or (b) in declining to strike for cause the venireman whose wife was a bank employee or the one whose daughter-in-law had been the victim of a bank robbery.
A. It is well established that a trial court may exercise broad discretion in conducting the voir dire of the jury, and particularly in phrasing the questions to be asked. See, e. g., Ristaino v. Ross, 424 U.S. 589, 594-95, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976); United States v. Johnson, 527 F.2d 1104, 1107 (4 Cir. 1975). The fact that a juror or his relative has been the victim of some crime, unrelated to the offense being tried, is, we think, only minimally relevant to the question of that juror‘s impartiality. Indeed, if the mere fact that a juror or his relative had been the victim of some crime unrelated to that being tried constituted grounds for discharge, it would become difficult, if not impossible, to assemble a jury panel. In the instant case, defendant does not suggest that any particular juror was actually subject to an influence adversely affecting his impartiality. As a consequence, it was not an abuse of discretion to refuse to ask the prospective jurors whether they or any of their relatives had been the victims of any crime.
In United States v. Poole, 450 F.2d 1082 (3 Cir. 1971), upon which defendant relies, the court overturned a conviction for armed bank robbery because the trial judge refused to inquire of the jurors: “Have you or any member of your family ever been the victim of a robbery or other crime?” However, the defendant in Poole was concerned specifically with the prejudice of a prospective juror who had once been a robbery victim. Id. at 1083. The absence of the first half of the question was fatal in Poole, and the cases it relied upon all involved prejudices arising from experiences with crimes similar to the ones at issue. Therefore, neither Poole nor the cases cited therein stand for the proposition that a trial court must ask whether the proposed jurors have had previous experience with any crime whatsoever.
B. In considering the district court‘s declining to strike the two jurors, we begin with the test articulated in Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961):
To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror‘s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. (Emphasis added.)
The burden of proving partiality is upon the challenger. Id. Moreover, findings of impartiality should be set aside only where prejudice is “manifest.” Id. at 724, 81 S.Ct. 1639.
There is some precedent suggesting that a juror who is related to a person holding a position similar to that held by the victim of the crime being charged must be excused for cause. See United States v. Poole, 450 F.2d 1082, 1084-85 (3 Cir. 1971) (bank tell-
The situation is more compelling when a juror is closely associated with a victim of the same type of offense as that being tried. See Virgin Islands v. Bodle, 427 F.2d 532 (3 Cir. 1970) (rape); Jackson v. United States, 129 U.S.App.D.C. 392, 394-395, 395 F.2d 615, 617-18 (D.C. Cir. 1968) (murder of lover by lover‘s husband). As the court noted in Mikus, 433 F.2d at 723, Jackson involved a striking similarity between the bizarre personal experiences of the juror and the facts of the case at hand, and deliberate non-disclosure by the juror. See also Caldwell, supra, 178 U.S.App.D.C. at 34, 543 F.2d at 1347 (slaying of police officer).
Here one juror was the father-in-law of a bank teller who had been the victim of a robbery within the preceding year. Yet, the juror in this case, unlike those in Jackson and Bodle, disclosed the basis for any potential prejudice during voir dire. Furthermore, he assured the court that his awareness of the experience of his daughter-in-law would not affect his impartiality. We decline to establish a per se rule of disqualification where a juror is related to a victim of a similar crime.
In short, we think the standards set forth in Irvin were fully satisfied. Neither venireman had a connection with the case that required his disqualification and both stated that they could put aside any preconceptions they may have had as the result of the experiences of their respective relations. Defendant has not shown that their prejudice was so “manifest” as to require reversal of the district court‘s finding of impartiality.
III.
Nor do we see error in the instructions which were refused.
A. Ms. Jefferson was not an accomplice as that term is generally used. See United States v. Simmons, 503 F.2d 831, 837 (5 Cir. 1974). She did not participate in the planning or execution of the robbery. While she was told, after she first afforded hospitality, that a robbery would take place, she was not told that the robbery had occurred when she readmitted the robbers to use her basement. It may well be that she could have been prosecuted as an accessory after the fact, see
B. According to the evidence adduced at trial, Jerry Rowell was not an addict, thus there was no foundation for the requested instruction. He testified that “off and on” he had been a regular user of heroin, but that he had not used narcotics on the day he appeared in court. Indeed on that day he had been in custody for five months and had just previously been sentenced to a term of twelve years for his part in the robbery. The rationale of the “addict” instruction, i. e., that an addict‘s desire to cooperate with the government because of his fear of arrest and subsequent withdrawal pangs and his desire to avoid recrimination by dealers in the drug chain will produce unreliable testimony, was therefore inapplicable to Rowell‘s situation. See Devitt and Blackman, Federal Jury Practice and Instructions, 3rd Ed., § 17.03.
IV.
A criminal defendant has no right to be tried by a jury containing mem-
AFFIRMED.
MURNAGHAN, Circuit Judge, dissenting:
While I concur in all other aspects of the majority opinion, with great respect, I dissent as to the issue dealt with in section II B because I believe that the district judge committed reversible error in refusing to strike for cause a prospective juror whose daughter-in-law was a bank teller who had, within a year of Jones’ trial, been the victim of a bank robbery. If the prospective juror should have been excused, even though the defendant struck the prospective juror peremptorily, nevertheless the result was prejudicial, since the defendant was thereby precluded from using the peremptory strike on another venireman he might have wished to remove from the jury. United States v. Rucker, 557 F.2d 1046, 1049 (4th Cir. 1977).
An impartial jury is an imperative constitutional right under the
The prospective jurors who worked for the bank robbed should have been excused for cause. Excusing those prospective jurors would have caused a slight inconvenience, which was heavily counterbalanced by the substantial probability that these prospective jurors, despite their disclaimers, could not become the “indifferent” jurors which the Constitution guarantees a criminal defendant.
The present case is stronger than Allsup from the defendant‘s point of view in one respect, weaker in another. It is stronger in that the relative of the prospective juror was not simply a bank employee but was a teller who had herself been the recent victim of a bank robbery. This case is weaker than Allsup from the defendant‘s point of view in that it is not the prospective juror who had been exposed to bank robbery, but rather a relative, his daughter-in-law.
Nevertheless, balancing the slight inconvenience that is occasioned by excusing the juror for cause against the strong probability of bias, I conclude that the defendant was constitutionally entitled to have the prospective juror excused for cause. Compare United States v. Poole, 450 F.2d 1082 (3rd Cir. 1971) and United States v. Poole, 450 F.2d 1084 (3rd Cir. 1971). Although those related cases went off on other grounds, the court had this to say with respect to a claim that veniremen (one of whom was a bank teller, the other a spouse of a bank teller) should have been excused for cause:
Appellant also contends that the district court erred on voir dire by its denial of the challenge for cause of two veniremen who were, or were related to, bank tellers. In the context of a criminal prosecution for armed bank robbery we find this contention of some significance.
See also Sims v. United States, 132 U.S.App.D.C. 111, 114 n. 5, 405 F.2d 1381, 1384 n. 5 (D.C.Cir. 1968). Sims goes further than
United States v. Caldwell, 178 U.S.App.D.C. 20, 34, 543 F.2d 1333, 1347 (D.C.Cir. 1974), cert. denied, 423 U.S. 1087, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976) appears to represent a retreat from Sims for it held it was not reversible error to fail to excuse for cause prospective jurors who were close relatives of police officers, where the charge was murder of a policeman. However, the retreat did not reach the point at which we find ourselves, for the Caldwell court was at pains to point out “that none was related to a police officer who had been murdered“. Here the close relative of the prospective juror had been the recent victim of a bank robbery. Cf. Government of the Virgin Islands v. Bodle, 427 F.2d 532, 534 (3d Cir. 1970), where a juror in the case of someone accused of rape was discovered, after the trial had been completed, to have had a sister who had been raped. Despite the obviously heavier burden on the accused when he first raises the question of the juror‘s partiality after trial, rather than at the pre-trial voir dire,1 the Third Circuit concluded
that the undisclosed information regarding Juror Blyden‘s sister created a substantial possibility that Blyden was not capable of objective determination of the facts of the case. Under these circumstances, appellant is entitled to a new trial.
While Mikus v. United States, 433 F.2d 719, 724 (2nd Cir. 1970) rejects Sims out of hand as persuasive authority on the facts of that particular case, it is, itself, readily distinguishable from the situation before us. There the charge was bank robbery and one prospective juror was the wife of the chairman of another bank. Bank robberies do not customarily occur in that portion of the premises frequented by principal officers such as the chairman or president. Had the indictment in Mikus charged abduction of a senior bank official, and the holding of him for ransom, the holding might well have been that refusing to excuse the prospective juror, a wife of a bank chairman, for cause was an abuse of the trial court‘s discretion.
The majority of the panel declines “to establish a per se rule of disqualification where a juror is related to a victim of a similar crime“. That constitutes a suggestion that the matter of whether to excuse for cause was within the discretion of the trial judge, and could have been decided either way. While the degree of relationship between the prospective juror and the victim of a prior, similar crime may in other cases become attenuated enough to make the decision a discretionary one, I am satisfied that, absent some extraordinary circumstance not present here, the rule should be generally the same in all cases involving a parent-in-law and child-in-law, and that it should require excuse for cause upon a defendant‘s request.2 Otherwise we may be confronted with a situation where different judges in a single district may always excuse, never excuse, or sometimes excuse and sometimes not excuse. Such a situation would be incompatible with the even-handed application of justice.
Since the position I have adopted would lead to a new trial, and since there is only a remote possibility that the same issue would arise on retrial, it is inappropriate to ex-