Charles v. Turner v. United States

416 F.2d 815

• Court: Court of Appeals for the D.C. Circuit
• Decided: July 10, 1969
• Docket: 21443
• Status: Published

Opinions

DANAHER, Circuit Judge:

Four men on December 1, 1965 were involved in a robbery. This appellant and one Tyler were found guilty.¹ At gunpoint $3,300 had been taken from Giant Food Store employees whom the robbers rounded up and forcibly herded into a meat box. Both Turner and Tyler were identified by employees as well as by McFarland who testified further in detail as to the planning and execution of the robbery.

I

Turner advances what he describes on brief as the “admittedly novel contention” that the trial judge should have conducted “a voir dire, outside the presence of the jury, concerning all of the surrounding circumstances of McFarland’s testimony.” Thus a determination could have been made as to whether McFarland had been coerced into testifying and his testimony before the grand jury could have been produced to ascertain his motivation. But there had been no motion for any such production, and McFarland’s credibility had been thoroughly tested at trial.² The judge cautioned the jury as to its consideration of the testimony of a perjurer, an accomplice and informer. Clearly within the province of the jury lay its assessment of the credibility of each of the witnesses as well as of the weight, if any, to be accorded to the testimony of McFarland.³

II

After verdict, and in support of a motion for a new trial, counsel for Tyler asserted that a juror, one Birekhead, informed him of comments by two women jurors indicating bias. Then joining in that motion, Turner’s counsel, Tyler’s attorney, a court stenographer and both convicted accused were present as the judge conducted a hearing in chambers. Birckhead was called as a witness.

He testified that after the trial, Tyler’s attorney approached him and questioned him. Then Birckhead told his questioner that he had overheard a woman juror say she had read in a newspaper about “so and so,” and something to the effect that “he” was a “bad one.”

As the hearing went forward Birckhead could not identify the woman juror, he did not know what paper she had in mind, or whether she had referred to a witness, a defendant or some other person.⁴

Each of the four women trial jurors denied knowledge of any such conversation as Birckhead so vaguely had attributed to one of them.

It has now, for the first time, been argued that the judge should have placed the respective jurors under oath and should have arranged a confrontation between Birckhead and the four women that possible bias might have been exposed.

Neither defense counsel voiced objection to the procedure adopted by the trial judge. Neither then raised a question as to the taking of unsworn testimony. Neither mentioned the lack of confrontation which now is said to have infected the course pursued, indeed the record shows that Tyler’s counsel explained that Birckhead had to return to work and he was accordingly excused upon the conclusion of his testimony.

In this state of the record respecting such claims advanced for the first time, we find no error in the trial judge’s denial of the motion for a new trial.

Ill

Denying the motion for a new trial, n.o.v., the judge observed that juror Birckhead reported⁵ his parents’ home, many years earlier, had been entered but nothing had been taken.⁶ “He made no disclosure at the time of voir dire because he did not think that this incident was relevant,” the judge wrote.

In the exact context of the questions, Birckhead correctly interpreted the import of the inquiry, for these accused were to be tried for armed robbery— not for some breaking and entering. Birckhead’s appraisal must have seemed appropriate to the trial judge who had presided over the pretrial voir dire as well as the post-trial hearing. He had conducted the full trial and thus was in position to assess the weight to be accorded to the circumstance, and there was ample basis for the view the trial judge decided to espouse.

Of course as a matter of hindsight, it might have been better for Birckhead to have responded literally in the first place that counsel might himself decide whether to accept or reject Birckhead as a juror. When such remote details became known, post-trial, the judge in deciding whether or not to grant the pending motion was bound to take into account: (1) whether Birckhead purposely had failed to answer or deliberately had concealed the facts; and if so, (2) whether there had emerged from that failure an imputation of such bias and prejudice as to require a new trial.⁷

Here the motion was denied, and implicit in the ruling was a finding that no significance was to be attached to the circumstance. Where the trial judge clearly was possessed of a grasp of the whole background, we find ourselves unable to say upon review that there was such an abuse of discretion as to require reversal.⁸

IV

Finally, appellant here contends that the prosecutor’s argument in rebuttal “was outside the evidence and was calculated to appeal to the passions and prejudices of the jury.” McFarland under cross examination by all defense counsel had admitted his criminal record, his current incarceration following conviction of robbery, his having acted as an informant against other criminals, and his participation as an accomplice in the instant crime. As might be expected, defense arguments in challenging his veracity made the most of his venality as the jury was asked to reject his testimony.

The prosecutor in closing endeavored to rehabilitate the witness and pointed out that criminals on occasion come forward and become witnesses for the prosecution. His argument recalled from McFarland’s testimony how the robbery at issue had been planned, how alibis had been fabricated in advance, what routes the robbers had followed and details as to their division of the spoils. Such testimony could have been come by only from one of the participants, as the rebuttal argument had it. The prosecutor then observed that if some of the jurors had read Capote’s book “In Cold Blood,” they would know that the crime there depicted found solution when one of the accomplices came forward. Again and in like vein,⁹ the prosecutor recalled that the whereabouts of the fugitive criminal Dillinger were disclosed to the authorities by one “within the criminal ranks.”

The appellant here would have us say that such references inevitably led to his being prejudiced. We are not persuaded that the incident so transcended the bounds of legitimate argument as to require reversal. Actually, the remarks appear more unnecessary than regrettable when the Government’s case in its entirety is viewed in retrospect. From time to time, our experience shows, the prosecutor will “over-prove” his case, and even in his zeal, assume the role of a witness, so to speak, and undertake in argument, to go beyond an outline of the facts and the inferences he wants a jury to draw from them. We have pointed out that “Absolute fairness is a counsel of perfection,” but at the very least, a prosecutor should hold himself to the highest practicable standard of fairness.¹⁰ Here, our adverse criticism does not amount to a conclusion that Turner’s conviction turned in any significant degree upon the Government’s closing argument.¹¹

Had prompt objection been made,¹² we have no doubt the trial judge then would have instructed the jury that such references to matters outside the record were to have no place in the determination of guilt or innocence of the accused in this case.

In the course of his charge the trial judge instructed the jury thus:

Now, ladies and gentlemen, the statements and arguments of counsel are not evidence. They are only intended to assist you in understanding the evidence and the contentions of the parties. Reference was made, for instance, in the argument of the District Attorney to a certain book and a certain character of some thirty years ago, one Dillinger. That was mentioned solely for the purpose of illustrating that on occasion informers do come from former associates of persons charged with crime, that and nothing more.

Just as we have weighed carefully the impact of the allusions here challenged, we have taken into account the assessment of the trial judge.¹³ His judgment cannot lightly be rejected. The evidence in this case in all other respects is so strong that the illustrations proffered by the prosecutor can have amounted to no more than had been recognized by the judge. Informers “do come forward” and testify as to criminal conduct on the part of their former associates. That is a matter of common knowledge.¹⁴ The references indeed were illustrative, “that and nothing more,” as the judge put it.

Affirmed.

1 . One Flynn was found not guilty, and McFarland, an accomplice, testified for the Government at the trial in June, 1967. By that time McFarland bad been imprisoned after conviction on another robbery charge.

2 . Hoffa v. United States, 385 U.S. 293, 311, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); Laughlin v. United States, 128 U.S.App.D.C. 27, 33, 385 F.2d 287, 293 (1967), cert. denied, 390 U.S. 1003, 88 S.Ct. 1245, 20 L.Ed.2d 103 (1968).

3 . Cf. Bush v. United States, 126 U.S.App.D.C. 174, 176, 375 F.2d 602, 604 (1967).

4 . Appellant on brief describes bis testimony as “equivocal.”

5 . Apparently the incident occurred at the hearing in chambers.

6 . Prospective jurors on voir dire had been queried by one of defense counsel:

I’d like to know if any members of the prospective jury panel have yourself been robbed.

* * * :¡: *

Now, have any members of the prospective jury panel had close relatives of [sic] very close friends who have been robbed?

7 . Cf. Ryan v. United States, 89 U.S.App.D.C. 328, 191 F.2d 779 (1951), cert. denied sub nom. Duncan v. United States, 342 U.S. 928, 72 S.Ct. 368, 96 L.Ed. 691 (1952).

8 . Id.; cf. Somerville v. Capital Transit Co., 89 U.S.App.D.C. 349, 350, 192 F.2d 413, 414 (1951).

9 . There was no evidence that any juror had read the Capote book, or that any had knowledge of the Dillinger history.

For reference, see Austin v. United States, 127 U.S.App.D.C. 180, 188, 382 F.2d 129, 137 (1967), and id., 127 U.S.App.D.C. at 200 n. 10, 382 F.2d at 149 n. 10.

10 . McFarland v. United States, 80 U.S.App.D.C. 196, 197, 150 F.2d 593, 594 (1945).

11 . Cf. Keeble v. United States, 347 F.2d 951, 956 (8 Cir. 1965); Fogarty v. United States, 263 F.2d 201, 204 (5 Cir. 1959); Padron v. United States, 254 F.2d 574, 577 (5 Cir. 1958).

12 . Cf. Fed.R.Crim.P. 30; Singer v. United States, 380 U.S. 24, 38, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965); Villaroman v. United States, 87 U.S.App.D.C. 240, 184 F.2d 261 (1950).

Not until the close of the argument was the incident noticed. Then Tyler’s counsel moved for a mistrial. The motion was denied. As it obviously seemed to the trial judge, so it may have appeared to Turner’s counsel (who voiced no objection at any time) that the references lacked other than illustrative significance. There was no effort to link the accused here with the characters mentioned.

13 . Cf. Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969).

14 . See as a recent example tlie facts stated by Mr. Justice Fortas in Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (April 1, 1969). “Courts have countenanced the use of informers from time immemorial,” usually as a matter of necessity, as the Court observed in Hoffa v. United States, supra note 2, 385 U.S. at 311, 87 S.Ct. at 418, 17 L.Ed.2d 374, quoting Judge Hand’s comment in United States v. Dennis, 183 F.2d 201, 224 (2 Cir. 1950).

Clearly the instant case presents none of the characteristics of Berger v. United States, 295 U.S. 78, and see 89, 55 S.Ct. 629, 79 L.Ed. 1314 (1935).