Carl D. Teitge (argued), Paul Sinnitt, Inc., P. S., Tacoma, Wash., for defendant-appellant in 75-3409.
Robert H. Westinghouse (argued), Asst. U. S. Atty., Seattle, Wash., for plaintiff-appellee.
Kenneth E. Kanev (argued), Asst. Federal Public Defender, Seattle, Wash., for defendant-appellant in 75-3410.
OPINION
Before CHAMBERS, Chief Judge, and DUNIWAY and MOORE, Circuit Judges.
MOORE, Circuit Judge:
Phillip Alfonso Tucker ("Tucker") and Harry Clardy ("Clardy") appeal from a judgment of the United States District Court for the Western District of Washington, entered on a jury verdict convicting them of assault with intent to murder in violation of
18 U.S.C. 113(a). Each appellant argues that several allegedly prejudicial trial and pretrial incidents require a new trial.
We disagree and accordingly affirm.
On October 27, 1974, inside the United States Penitentiary at McNeil Island, Clardy and Tucker stabbed fellow inmate Leonard Walker in the mouth and arm. Walker had refused to pay interest on a loan which he had obtained from Clardy, and the stabbing was apparently appellants' notion of retribution. Neither appellant challenges the sufficiency of evidence which proved these facts.
Later in the day, Tucker was confined in segregation where he was joined by Clardy three days later. An indictment charging the two with the crime was handed up on April 1, 1975, their arraignment followed on April 18, 1975, and the trial commenced on July 28, 1975.
Both appellants contend that the failure to commence trial sooner deprived them of their speedy trial rights under the Sixth Amendment. That right assertedly attached when appellants were de facto arrested by being placed in segregated confinement after the attack. However, such discipline is not an "arrest" for speedy trial purposes. Cf. United States v. Smith,
464 F.2d 194 (10th Cir.), cert. denied,
409 U.S. 1066 , 93 S.Ct. 566, 34 L.Ed.2d 519 (1972). The identifying indicia of a de facto arrest sketched in United States v. Marion,
404 U.S. 307, at 320, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), are for the most part absent here. The prison discipline did not focus public obloquy upon appellants, did not disrupt their "employment" or drain appellants' financial resources. In short, it was not a public act with public ramifications, but a private act. Actual physical restraint may have increased and free association diminished, but unless we were to say that imprisonment ipso facto is a continuing arrest, these criteria bear little weight in the peculiar context of a penal institution where the curtailment of liberty is the general rule not the exception. Thus, speedy trial rights did not come into play until April 1, 1975, when appellants were indicted, and therefore, for purposes of such rights, the delay was only two months and 28 days. During this period, appellants' rights were not infringed. The delay was relatively brief and was not employed by the Government to harass. During that period, several motions had to be considered and decided. We do not say that appellants' status as prisoners automatically precluded assertion of the claim presently sub judice, see Strunk v. United States,
412 U.S. 434, at 439, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973); Smith v. Hooey,
393 U.S. 374, at 379, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), but that based upon all the facts and circumstances, their speedy trial claims are unpersuasive.
Appellants alternatively contend that the five month pre-indictment delay deprived them of due process under United States v. Marion, supra. Tucker claims that the investigation of the crime was completed long before the indictment, that the prison measures inhibited the preparation of his defense and that the passage of time partially dulled the memory of his alibi witnesses. Clardy goes further and claims that the Government intentionally delayed the indictment for tactical advantage. We disagree.
Relative to other cases which have presented this issue, see, e. g., United States v. Erickson,
472 F.2d 505 (9th Cir. 1973), it is questionable whether five months could even be characterized as legally cognizable delay. But that question aside, neither appellant has sufficiently demonstrated actual prejudice. The cases are legion which indicate that partial forgetfulness will not suffice. And whatever prejudice resulted from their segregated confinement flowed from the administrative decision to place the men in such facilities and had nothing to do with delay in processing the indictment. Moreover, there were good reasons for much of the delay. Until it became known whether the victim would live or die, the exact nature of the crime could not be ascertained. And until the victim had recuperated, he was incapable of rendering full assistance to the investigative effort. That he may have spoken to Government agents or have withstood transferral to a different hospital within a week of the crime does not mean that he could have endured the extended questioning inevitably associated with thorough case investigation. The case involved numerous witnesses and the investigation most certainly was handicapped by the fact that most of them were prison inmates. There was neither actual prejudice nor intentional delay.
Appellant Clardy next urges that the lower court abused its discretion in refusing to require the Government to disclose the names and addresses of all its prospective witnesses. This claim is meritless. In United States v. Richter,
488 F.2d 170 (9th Cir. 1973), this Court held that although the district court is not statutorily compelled to grant such discovery, its inherent power to do justice might allow it to do so in the exercise of its discretion. For guidance, the court looked to F.R. Crim.P. 16, which was then the subject of proposed amendments to allow discovery of prosecution witness lists, and held that as a prerequisite to the exercise of discretion, the defendant must prove that the request is material and reasonable. Since the Richter decision was rendered, the proposed amendments to Rule 16 that would have authorized discovery of a prosecution's witness list have been rejected. In view of this development and the clear possibility that disclosure of the names and exact whereabouts of inmates who planned to testify against the defendants might have endangered those witnesses, we conclude that the lower court's denial of Clardy's discovery motion was not an abuse of the lower court's broad discretion on this issue.
Both appellants also contend that security measures deprived them of due process. Before the commencement of the afternoon session of the first day of trial, appellants' counsel objected to the presence of armed plainclothes Deputy United States Marshals within the courtroom, and uniformed Postal guards outside the courtroom. During the colloquy which ensued, the court indicated the reasons for the security, stating that the case involved a large number of prison inmates which the courthouse was not equipped to accommodate safely and that an outside group had expressed an "interest" in the trial. The court refused to allow defense counsel to question the Marshal about the precise details for fear that such information might work its way into the hands of the defendants, who in turn might use it to attempt to escape. The following morning, outside the presence of the jurors, defense counsel stated that he had seen five armed deputy marshals assisting the unloading of individuals (apparently inmate witnesses) from a van. The judge reiterated his previous remarks and identified the group, which he had stated was interested in the trial as the "SLA".
Often a trial court finds itself obligated to simultaneously discharge clashing duties. The trial which engendered this appeal is a good example. On the one hand, it was incumbent upon the court to strive to preserveimpartiality and to avoid allowing anything to undermine the defendant's presumption of innocence. On the other hand, the trial court was charged with the duty to preserve the safety of counsel, jury, witnesses, spectators in short, everyone inside the courtroom. Leyvas v. United States,
264 F.2d 272, at 277 (9th Cir. 1958), cert. denied,
359 U.S. 936 , 79 S.Ct. 651, 3 L.Ed.2d 637 (1959). Our concern is whether in attempting to reconcile the two duties, the lower court abused its discretion and deprived the defendants of a fair trial. Such inquiry depends upon the peculiar facts to which each appeal is wed. In this case, the facts reveal no error.
The need for security was clear. The court was apprised by reliable sources that a terrorist group might attempt to upset the trial or worse, and there is no dispute that the courtroom and building were ill-equipped to handle the influx of convicted criminals, some of whom had previously been convicted of escape.
The court was cognizant of the defendants' rights and the precautions employed were much less drastic than other measures, the utilization of which has been approved before. The defendants were not shackled. Compare, Loux v. United States,
389 F.2d 911 (9th Cir.), cert. denied,
393 U.S. 867 , 89 S.Ct. 151, 21 L.Ed.2d 135 (1968). Nor were they handcuffed. Compare, United States v. Kress,
451 F.2d 576 (9th Cir. 1971), cert. denied,
406 U.S. 923 , 92 S.Ct. 1789, 32 L.Ed.2d 123 (1972). They were present throughout the course of the trial. Compare, Illinois v. Allen,
397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). Nobody was searched by an electronic magnetometer. Compare, United States v. Heck,
499 F.2d 778 (9th Cir.), cert. denied,
419 U.S. 1088 , 95 S.Ct. 677, 42 L.Ed.2d 680 (1974).
Moreover, the court cushioned the impact of the security measures that were employed. Only plainclothes persons were within the courtroom. Their weapons were concealed. The defendants were brought into and taken out of the courtroom outside the jury's presence. And finally, the court admonished the prospective jurors:
"Now there are certain this (sic) that you might become aware of in and about the courtroom, and around the premises. As far as you are concerned, that has nothing to do with what you are supposed to be doing. In other words, your job is the same, regardless of what happens as far as the courtroom is concerned, or outside the courtroom. . . . "
This instruction was supplemented with an additional inquiry during the course of the trial.
Nor was it an abuse of the court's discretion to refuse to disclose the exact nature of the security precautions to the defendants' counsel at trial. Loux, supra, at 919. The facts supporting the lower court's apprehension of an attempted escape were different than those in the Loux case, but the lower court's apprehension was no less reasonable. Furthermore, the court explained the reasons for the precautions and as neither Clardy nor Tucker were shackled, their interest in more detailed information was tenuous. If counsel could not observe the security measures that had been implemented, it is unlikely that those measures affected the appearance of impartiality in the juror's eyes.
Appellants next contend that a mistrial should have been declared after an incident occurred at defense counsel's table. During the Government's examination of a prison security officer, the Assistant United States Attorney placed the knife which had been recovered from the toilet in the victim's cell on defense counsel's table for inspection prior to moving its admission into evidence. A deputy marshal who was sitting behind the table stood to grab the knife, but before he could retrieve it, the court ordered defense counsel to hand it to the prosecutor, which he did. Subsequently, defense counsel was required to inspect the knife at the Government table.
This incident was regrettable and should have been avoided, but the Assistant United States Attorney's mistake was inadvertent and the trial judge's prompt poll of the jury showed that the defendants had not been prejudiced. Even were we to indulge a contrary presumption, we would conclude that the judge's instruction cured the error.
Appellants also contend (without the benefit of prior case authority) that the court erred when it denied a mistrial motion predicated upon a bomb explosion in the courthouse. After the court recessed on the sixth day of the trial (the day before the verdict was rendered), a bomb detonated in the building, one floor below the courtroom. Nothing suggested or suggests that either appellant was in any way linked with the bombing. The following morning the court promptly polled the jurors individually to determine whether the incident had affected their view of the defendants or the proof. All the jurors denied that the incident would affect their obligations. The court also instructed them to ignore it and reminded them of their obligations to judge the case on the facts. In view of this curative instruction and the jurors' responses to the judge's inquiry, we agree with the lower court that appellants were not prejudiced or deprived of a fair trial by this incident. Consequently, to hold that they were would merely tempt terrorists to make criminal justice a hostage.
Appellants also contend that the press coverage of the explosion was one instance of prejudicial publicity which, considered cumulatively, deprived appellants of a fair trial. During the second day of trial, an eleven paragraph article about the trial appeared in Tacoma News Tribune. At the commencement of the third day of trial, the court conducted a voir dire of the jurors individually to probe the possibility of prejudice. Only three jurors had seen the article and in response to further questioning each indicated that it had not affected his ability to decide the case. After the conclusion of the day's testimony, the court admonished the jury, inter alia, that "hopefully you won't hear or read (any additional news coverage of the case)", and although press coverage continued throughout the duration of the trial, the court's voir dire questioning disclosed that none of the jurors saw or heard any of the later articles. The explosion and subsequent court inquiry adverted to earlier, capped these events.
Citing United States v. Polizzi,
500 F.2d 856, at 879 (9th Cir. 1974), cert. denied,
419 U.S. 1120 , 95 S.Ct. 802, 42 L.Ed.2d 820 (1975), appellants contend that the lower court did not adequately probe the possibility that prejudice resulted from these incidents. However, their reliance is misplaced, for, if anything, application of Polizzi supports appellee. In Polizzi, supra, at 880-81, this court stated:
"The trial judge carries a difficult burden. He is called upon to question the jurors, but repeated questioning could itself be prejudicial in inciting in the jurors 'joint or individual curiosity and encourage attempts to read the very newspaper articles sought to be kept from their knowledge' (citations omitted). His very questions may disclose or accentuate controversial issues. Unless he has clearly abused his discretion, we shall uphold the trial judge's delicate estimation of the needs of the case of which he has firsthand experience."
Based on the particular facts of this appeal we conclude that the trial court did not abuse its discretion. Two jury interrogations revealed that none of the jurors had even viewed or heard publicity about the trial. To have delved further would only have risked disclosing in the course of the voir dire the substance of the material which was allegedly prejudicial. In the instance where three jurors had read the newspaper article, the court was entitled to rely on the jurors' subjective assessment of their impartiality. At the time of incident, that was apparently the only article which had appeared. Thus, publicity was not sufficiently substantial to require the court to pass beyond the juror's own assessment.
Even were the Polizzi holding favorable to appellants, we would have to note that here the publicity as a whole was scarcely as pronounced. There was no pre-trial publicity, and until the sixth day of trial, only one short article had come to the attention of only three members of the jury. Thus, even assuming that the jury had viewed the article which appeared after the sixth day of trial and had heard about the explosion, we conclude that the judge's inquiry and admonitions were adequate to preserve an impartial atmosphere consistent with appellants' rights to a fair trial.
Somewhat tangentially, appellant Tucker contends that error was compounded when the trial court denied his motion for the addresses of the jurors. Tucker wanted to contact the jurors and to see whether any "extraneous prejudicial material" had come to their attention. However, the trial court's action was proper and Tucker's motion frivolous. Nor was any showing made that any of the jurors had seen such material.
Finally, appellant Tucker contends that the court improperly excluded evidence of witness Neaderhiser's inability to identify Tucker as the assailant during a photographic show-up. Tucker first sought to elicit the testimony by calling Gene Reitschel, the law student who interviewed Neaderhiser for the defense and conducted the show-up. After sustaining the Government's objection, Tucker made a formal offer of proof that Reitschel would have testified that Neaderhiser, a purported eye-witness to the crime, did not identify Tucker as the assailant although he was shown Tucker's photograph during the show-up. Tucker then attempted to introduce the evidence through Neaderhiser. The court again refused to admit the evidence, but Neaderhiser did testify that he was unable to identify Tucker as one of the inmates who had entered the cell. Even ignoring the fact that Rule 801 (Fed.Rules Evid.Rule 801, 28 U.S.C.A.) contained no provision authorizing the admission of statements of identification until it was amended effective October 31, 1975, and without regard for whether a statement of identification is different from a statement of non-identification, we conclude that the court's ruling was not error. While identification statements are admissible, a refusal to admit is not erroneous unless it constitutes an abuse of discretion. Considering that the evidence offered in this case would have been merely cumulative we conclude that there was no such abuse in this case.
None of appellants' grounds for appeals considered separately are persuasive, and this is not a case where an accumulation of isolated errors dictates reversal.
Judgments affirmed.
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