United States v. Donovan Workman

454 F.2d 1124

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 20, 1972
• Docket: 26500
• Status: Published

Opinions

J. WARREN MADDEN, Judge:

Workman, hereinafter called the defendant, or the appellant, was charged, in an indictment, with assaulting a police officer, in violation of 18 U.S.Code § 113(c), and in an information, with destruction of United States Government property in violation of 18 U.S.Code § 1361. The two charges were consolidated, for trial by jury, which trial took place on May 5 and 6, 1970, in the United States District Court for the Western District of Washington. The jury found the defendant guilty on each of the two charges described above, and the court sentenced him to imprisonment for five years on the charge of assaulting a police officer, and one year on the charge of destruction of Government property, the second sentence to run consecutively to the first. The defendant appealed. This court has jurisdiction of the appeal by virtue of § 1291 of 28 U.S.Code.

The brief on appeal filed by the counsel who had represented the defendant at the trial contained the following “Specifications of Errors”.

1. The Court erred in denying appellant’s motion for a mistrial.

2. The Court erred in that it abused the Court’s privilege of comment in remarks pertaining to appellant’s witnesses, Jan Peterson and Michael Rosen.

3. The Court erred in imposing sentences of five years and one year to run consecutively, as, under the facts and circumstances of the case, such sentence constituted cruel and unusual punishment.

With regard to the first specification of error, the trial court’s denial of the defendant’s motion for a mistrial, it can only be said that the controversy constituted a “tempest in a teapot”. A witness for the prosecution, a policeman, Pillon, was being examined by the prosecutor as to actions of the defendant, of which actions Pillon was testifying as an eye-witness. He testified that he saw the defendant in the crowd at the front of the federal court-house, that the defendant was wielding a chain, which the defendant “swung over his head and he swung at the heads of two other persons that I saw.” Counsel for defendant said “Objection, move to strike.” Asked by the court to explain the objections, counsel said “Talking about other incidents, your Honor”. The court then said, “I don’t think we should go into other incidents. Next question”. The next question by the prosecuting attorney was, “Officer, do you know who the other persons were that he swung the chain at?” The asking of that question apparently seemed to defense counsel to be the last straw, and he felt obliged to move for a mistrial. The court denied the motion for a mistrial, but admonished the jury to give no weight to the statement about the defendant’s swinging the chain at people other than the policeman Grayson named in the indictment as having been the victim of the defendant’s assault. When the examination of the witness was resumed, the witness, to “clarify” his prior testimony, explained, in effect, that when he testified that he had seen the defendant swinging the chain over his head he meant the defendant’s own head, and when he spoke of the defendant having swung the chain over the heads of other persons, the other persons were Officer Grayson and another officer standing close to him. So the extensive learning about “other crimes” as circumstantial evidence of guilt of the crime charged was not in the case at all.

One might suppose that the misunderstanding, which gave rise to the motion for a mistrial having been cleared up, within minutes after it occurred, it would not be heard of again in this litigation. But, to the extent of several pages in the appellant’s first brief, the dead issue is again belaboured. I can regard this only as an imposition upon the court and the parties.

The defendant’s second specification of error is given the following heading: “The trial court committed prejudicial error in making remarks about appellant’s witnesses that would tend to disparage them in the eyes of the jury.” In elaborating this subject counsel says “At the trial, of this cause appellant called two witnesses who observed the chain-swinging incident during the demonstration. • These witnesses were Michael Rosen and Jan Peterson, both attorneys, and both staff members of the American Civil Liberties Union”. (A.C.L.U.) It should be said that the testimony of these two witnesses was relatively unimportant. The fact that these two professional men were willing to be put on the witness stand as witnesses for the defense would have given an air of respectability to the defense’s side of the case, would have been of some help to the defense. But the difficulty was that they did not know anything about the relevant facts. Those relevant facts were, principally, how near to the face of the potential victim of the swinging hook at the end of the chain was the hook; was it six inches, one foot, two feet? What was the expression on the face, and the nature of the motions of the swinger of the chain? What was the expression on the face of Officer Grayson, near whose face the hook was swung, and what was the nature of his backward movements, while the' defendant was moving toward him? What, if anything, was said by the defendant or by anyone else during the few seconds of action? As to these matters the two lawyer witnesses knew nothing. They were some 350 feet away from the action, and, of course, readily admitted that they knew nothing about these vital facts. So far, then, as any remarks of the judge might have caused the jury to discount the testimony of these lawyer witnesses, the witnesses had already frankly admitted the insignificance of their testimony.

I think it was not improper for the trial court to bring out, by questions addressed to the two lawyer witnesses, why they were at the scene of the demonstration, as observers, and in the performance of their duty as A.C.L.U. staff lawyers. The members of the demonstration were potential clients, with regard to bail, if needed, and with regard to a defense at their trials if their cases were rationally defensible. If a lawyer is an observer of an event in which his potential client is a participant, about which event there may, as he knows, later be a trial, and in the trial, as he has it from our highest authority, his duty will be to be completely partisan on the side of his client, it would not be “wonderful” as Chief Justice Marshall might have quaintly expressed it, if some of that one-sidedness might affect his vision of the act which he has observed.

But there is more to the appellant’s claim that the trial judge conducted himself improperly with regard to the two lawyer witnesses, Rosen and Peterson. It so happened that at the very time of the trial of Workman, on May 5, 1970, a demonstration was taking place at the front of the same court-house at which the events out of which Workman’s trial arose, had taken place on February 17, 1970. An interesting difference of appraisal of the events of the day of the trial, May 5, 1970, is the following. In the brief of plaintiff’s trial counsel, that occurrence is spoken of as “(which parenthetically had nothing whatsoever to do with this trial, and was a peaceful demonstration)”. On the other hand, the defendant’s supplemental brief says: “* because the record makes clear that the outside demonstrations, affecting the excitement and fear at the court-house, and calling into play the overabundance of the riot-gear Tactical Squad police and judicial inflammation to the jurors * * ” '

Whatever was going on outside the court-house did not, apparently, interfere with the testimony of Rosen and Peterson. At the close of Peterson’s testimony the court addressed some remarks to the jury, referring to the then active demonstrators as cheerleaders. We see nothing wrong with that. The court further said:

“I think I am not going to take a recess at this time. I hear the cheerleaders out in front. We will continue on a little while. At least I assume that is what I hear but don’t let it bother you.

I don’t know whether it is the right thing to say but someone once said brave men die only once and a coward a thousand times, so that I guess we might as well be brave and I take it most of you have lived a good, full life anyway so that what is the difference.”

The foregoing judicial peroration may not have been Shakespearean, but I am not competent in that field. I think that it disclosed no more than that the judge did not approve of demonstrations at the court-house. I suppose that the jury would have been unanimous in agreeing with that. But that would not have affected their opinion of the violent incident which had occurred on February 17, 1970, and the question whether the defendant had a guilty part in it.

Immediately following the foregoing events, the witness Peterson asked the court, “May we be excused ?” The court said “Yes, you may be excused. I think they are waiting for you”. I think the court’s expression was careless, rude and improper. It was the kind of expression which, if indulged in by a person of importance, will usually produce a laugh, from many of his audience and an embarrassed chuckle from some. It contained an implication that A.C.L.U. lawyers have nothing more useful to do than to participate in demonstrations. But I have no urge to abort this important and expensive judicial proceeding because one of the actors in it disclosed that he was, like the rest of us, not impeccable. As has already been said, the testimony of the witnesses who might have been discredited by the remark was unimportant, and the evidence of what happened on February 17, 1970, was overwhelming and, in effect, uncontradict-ed.

The appellant in his brief attacks the sentences imposed by the District Court, saying “The sentence imposed by the court constituted cruel and unusual punishment”. The sentences were, 5 years, the statutory maximum on the assault conviction, and one year on the damage to Government property charge, also the statutory maximum for that offense, the one year sentence to be consecutive to the five year sentence. The appellant argues that these maximum sentences constituted, in the circumstances, an abuse of discretion on the part of the sentencing court. The fact that the sentencing occurred less than 24 hours after the jury verdict, and without a pre-sentence report, and that the trial court, in its remarks at the time of sentencing, stressed the deterrent purpose of sentencing, are urged by the appellant to show that the court did not, or did not sufficiently consider the rehabilitative purpose of sentencing.

As to the absence of a pre-sentence report, the record shows that the other judge who had conducted pretrial hearings in the defendant’s case had appointed a psychiatrist who had examined the defendant at length and had submitted his report to the court; that a psychiatric expert presented by the defendant at the trial testified at length concerning the defendant’s history and was cross-examined by the prosecution; that a psychiatric expert testified for the prosecution, in rebuttal of the defendant’s expert, and was cross-examined by the defendant; that the defendant was a witness in his own behalf, and was cross-examined by the prosecution. The defendant’s lengthy testimony consisted largely of his personal history and conduct during several years preceding the events resulting in his trial. I think the trial judge had a much more complete exposure to the pertinent history of the defendant than he would have obtained from, for example, a probation officer’s report.

The image of the defendant which the court might reasonably have received from the sources just mentioned, could have been that of a twenty-two year old man, endowed with a good deal of native intelligence, with a physique which had survived an almost incredible amount of self-inflicted physical abuse and was still in salvageable condition if a reasonable amount of order and system were imposed upon him; a man whose actual life had, for several years, been worse than worthless to himself and to society, who had, as he testified, made his living by, among other things “doing some rip-off and things like that, trying to scrounge the best I know, scrounging, begging, selling a fix.” His testimony, as I read it, is an inarticulate plea for help from a man who is not devoid of sensitivity, a recognition that the freedom which society had accorded him had, under his management, made of him a pitiable public nuisance; that he was approaching the last stop, and he was afraid. The trial court may well have concluded that what this man needed was not a slap on the wrist and then some more freedom, but a substantial period of orderly life in which he could not, without extraordinary skill, resume his former practice of self-destruction. The trial court’s experiment in sentencing may not work out successfully. There have been many failures in this vital field in which so many dedicated persons have worked, and such astronomic sums of money have been spent. But no outcome could be worse than the life of “rip-off * * * scrounging, begging, selling a fix”, the apparent alternative.

My conclusion is that the sentence imposed by the trial court did not constitute cruel and unusual punishment, nor was it otherwise erroneous.

Trial counsel for the defendant submitted a list of 30 questions, and a request that these questions should be addressed by the court, to prospective jurors on voir dire. During the voir dire by the court, there was discussion between the court and defense counsel. Some of the requested questions were asked, more were refused. Trial counsel in this appeal makes no mention of the problem of the requested questions. But new counsel, who filed a supplemental brief for the defendant in this appeal, complains about the unasked questions. He says that no questions “were elicited concerning attitude toward drug users, white revolutionaries, demonstrators, law and order, crime and violence, the Seattle Liberty Front, the war in Southeast Asia, or any matter that ‘unconsciously fights detachment from the mental processes of the average man’ ”. The foregoing quote within a quote is from the opinion in Irvin v. Dowd, 366 U.S. 717, 727, 81 S.Ct. 1639, 6 L.Ed.2d 751. I think that an intensive questioning of each prospective juror upon the subjects named above would have consumed an inordinate amount of time, would have confused the jurors as to what issues were relevant to the case upon which they were about to deliberate, and would not have produced any significant information about the suitability of the prospective jurors.

Defendant’s supplemental brief says “The trial court’s conduct toward defense counsel, in treatment of defense witnesses, in mentioning appellate procedures available, and in general comments was unfair”. I have, earlier in this opinion adverted to the uncalled for remark which the judge made to the A.C. L.TJ. witness when the witness was leaving. I refer to that discussion. The only seriously questioned fact in the case was that treated by the expert psychiatric witnesses as to the mental capacity of the defendant to entertain a criminal intent. An examination of the court’s dialogue with each of the expert witnesses shows an even-handed unbiased treatment of the witnesses. As to the treatment by the judge of the defendant’s trial counsel, it is worth mentioning that that counsel, in his brief for the appellant, did not complain about his treatment by the court. And I see nothing in the record in that connection except the not unheard of phenomenon of a somewhat high-handed captious moderator of a trial, to whose conduct the practicing bar had developed an immunity.

Counsel speaks of the trial court’s “mentioning appellate procedure” as prejudicial error, but says nothing further about that in his brief. The reference must be to a passing remark by the trial court, in explaining to a juror that the juror must accept the law as given to him by the court. Then the court said “If there is any error, why (sic) someone else can correct it”. Surely the jurors could not have received the impression, from these brief words, that they need not consider their verdict carefully and responsibly because “someone else” would have the final word and the responsibility for the outcome of the trial. Compare People v. Morse (1964), 60 Cal.2d 631, 36 Cal. Rptr. 201, 388 P.2d 33.

I find no prejudicial error. The judgment appealed from is affirmed.