Robert Wade Brown, Jr. v. United States, 356 F.2d 230, 10th Cir. (1966)
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Scribd Government DocsRobert Wade Brown, Jr. v. United States, 356 F.2d 230, 10th Cir. (1966)
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Scribd Government Docs356 F.
2d 230
Robert Wade BROWN, Jr., Appellant,
v.
UNITED STATES of America, Appellee.
No. 8334.
United States Court of Appeals Tenth Circuit.
January 25, 1966.
Jerry L. Hemry, Oklahoma City, Okl., for appellant.
Benjamin E. Franklin, Asst. U. S. Atty., Wichita, Kan. (Newell A.
George, U. S. Atty., and Guy L. Goodwin, Asst. U. S. Atty., Wichita,
Kan., with him on the brief), for appellee.
Before PICKETT, LEWIS and HILL, Circuit Judges.
PICKETT, Circuit Judge.
Brown, while confined in the United States Penitentiary at Leavenworth,
Kansas, killed a fellow prisoner and was sentenced upon conviction of seconddegree murder. He appeals, contending that the trial court erred in (1) admitting
his confession in evidence; (2) refusing to grant a new trial because a juror
failed to answer a question which would have disclosed his disqualification;
and (3) refusing to permit the accused to exhibit to the jury a scar on his body.
On March 20, 1964, in the presence of a number of witnesses, and within the
confines of the penitentiary, Brown fatally stabbed one Tony Freitas, another
inmate. Immediately thereafter Brown was placed in disciplinary segregation, a
form of solitary confinement, commonly known in prison argot as "the hole."
While so confined, Brown was given small quantities of food consisting of
bread, beverage and cereal. For several days he had neither mattress nor
blanket; however the record indicates that "the hole" was heated.
On the day of the killing, Brown was visited by F.B.I. Agent Max Richardson,
who sought to question him about the incident. The interview was immediately
terminated when Brown indicated that he did not wish to discuss the matter. On
the following day another interview was attempted, but Brown again refused to
discuss the case. On March 25, Richardson again contacted Brown, who was
then willing to give his version of what happened. He signed a statement
relating the details of the stabbing, but asserted that it was done by him in selfdefense. On March 27, Brown sent for Agent Richardson and advised him that
his previous statement was untrue insofar as it dealt with the matter of selfdefense.
4
When Brown's statement, as amended, was offered in evidence at the trial, its
admission was objected to upon the ground that it was not voluntary, and
further that it was obtained in violation of Brown's constitutional rights.
Thereupon, in the absence of the jury the court conducted a hearing to make a
factual determination of these issues. Conflicting testimony was adduced from
Brown and F.B.I. Agent Richardson as to the circumstances surrounding the
confession. The court overruled appellant's objection and admitted the
confession, finding that Brown was adequately informed as to his constitutional
rights and that there was no evidence of physical mistreatment or coercion
which would effect the voluntary nature of the statement.
It is argued that the statement was involuntary and improperly admitted into
evidence because (1) Brown was not fully advised of his constitutional right to
counsel before making the statement, and (2) the statement was the product of
mistreatment and coercion.
We are satisfied that the record amply supports the finding that Brown, before
he answered any questions, was fully advised as to his constitutional rights,
specifically his right to remain silent and his right to counsel. On each of his
visits, and particularly prior to the taking of the statements of March 25 and
March 27, Agent Richardson was careful to advise Brown of his identity and
official position; that he was not compelled to make a statement; that if he did it
could be used against him in court; and that he was entitled to consult an
attorney before making a statement. Brown indicated that he understood these
rights; his statement contained the declaration "I have been advised that I am
not compelled to make a statement, and that I am * * * entitled to consult an
attorney before making a statement." Prior to each questioning Brown was well
aware of, and was repeatedly and properly advised as to his constitutional
rights, including his right to counsel, and he cannot now complain. Davidson v.
United States, 10 Cir., 349 F.2d 530; Mah v. United States, 10 Cir., 348 F.2d
881.
In order to determine whether a confession is voluntary, it is necessary to
consider the totality of circumstances surrounding its making. McHenry v.
United States, 10 Cir., 308 F.2d 700, cert. denied 374 U.S. 833, 83 S.Ct. 1878,
10 L.Ed.2d 1055. Relevant criteria are the age, mentality, and prior criminal
experience of the accused; the length, intensity and frequency of interrogation;
the existence of physical deprivation or mistreatment; and the existence of
threat or inducement. See Thomas v. State of Arizona, 356 U.S. 390, 78 S.Ct.
885, 2 L.Ed.2d 863, reh. denied 357 U.S. 944, 78 S.Ct. 1379, 2 L.Ed.2d 1557;
Fikes v. State of Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246, reh.
denied 352 U.S. 1019, 77 S.Ct. 553, 1 L.Ed.2d 561; Brown v. Allen, 344 U.S.
443, 73 S.Ct. 397, 97 L.Ed. 469, reh. denied 345 U.S. 946, 73 S.Ct. 827, 97
L.Ed. 1370; Watts v. State of Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed.
1801.
8
At the hearing to determine the admissibility of the confession, Brown asserted
that his statement was the product of threat and physical deprivation. The
testimony of Agent Richardson repeatedly controverted that such threats were
in fact made. In considering the conflicting testimony, the trial court chose to
believe the F.B.I. Agent rather than Brown.1 Cf. Davidson v. United States,
supra 349 F.2d at 534; Thomas v. State of Arizona, supra 356 U.S. at 402-403,
78 S.Ct. 885. The trial court followed the rule prevailing in the federal courts
by first passing upon the admissibility of the confession after a full and fair
hearing on the matter and by then submitting that issue to the jury under
appropriate instructions for its consideration in determining what credibility, if
any, would be accorded it. McHenry v. United States, supra 308 F.2d at 704.
From the record, we find no credible support for appellant's assertions that his
confession was the product of mistreatment and intimidation. Brown was an
experienced adult criminal with prior solitary confinement for a crime identical
to the one charged here, and he was not subjected to any prolonged or
exhaustive questioning or any physical or psychological coercion. There was
ample evidence to sustain the trial court's finding that Brown, adequately
advised of his rights, made his confession freely and voluntarily, and without
threat, promise or coercion.
A more difficult question arises from appellant's contention that "the trial court
erred in not granting appellant's motion for new trial when appraised of the
probable partiality of a member of the jury hearing the trial." During voir dire
inquiry by defense counsel, the prospective jurors were asked if any of them "or
anyone in their immediate family" had ever been the victim of an attack upon
their person. There was no response. Subsequent to the trial it developed that a
brother of one of the jurors had been murdered some years prior. Brown urges
that he was denied the fair trial required by due process; that the verdict was
returned by a tainted jury, one of the jurors of which was prejudiced; that the
juror's failure to respond to the voir dire question worked to deny defense
counsel the effective use of his peremptory challenges.
10
There is no contention here that actual bias has been shown. Rather, the issue is
whether the circumstances of this case compel an imputation of inherent bias to
the juror as a matter of law. Certainly the voir dire oath administered to
potential jurors obligates them fully to tell the truth. However, no reason
appears for concluding that the juror was in fact not fully responsive to the
actual interrogatory, which referred to the juror's "immediate family." Such a
term is indeed ambiguous, for depending upon such circumstantial variables as
age and marital status, it can import different meanings to different individuals.
Defense counsel was free to explain to the jury what was meant by "immediate
family", and could have expanded his inquiry to include "family" and
"relatives", but he elected to pursue the point no further. It cannot be presumed
that the juror's failure to respond to the question was not proper, and an
inference of intentional or inadvertent non-disclosure is unwarranted.
11
Appellant urges that the decision in Consolidated Gas & Equipment Co. of
America v. Carver, 10 Cir., 257 F.2d 111, is controlling authority in this case.
There, in the course of voir dire examination, the court asked of the jury panel
whether any of its members had been involved in a personal injury suit. A juror
remained silent even though he had a case then pending in the state court for
injuries similar to those sustained by the plaintiff. The effect of the juror's
failure to answer the question "was to deceive and mislead the court and the
litigants in respect to his competency." 257 F.2d 111, at 115. The record here
does not disclose that the juror either failed to give a truthful answer to the
question propounded, or conceal a known disqualification. Cf. Fritz v. Boland
& Cornelius, 2 Cir., 287 F.2d 84. There is no indication here of positive nondisclosure such as took place in United States ex rel. De Vita v. McCorkle, 3
Cir., 248 F.2d 1, cert. denied 355 U.S. 873, 78 S.Ct. 121, 2 L.Ed.2d 77, reh.
denied 355 U.S. 908, 78 S.Ct. 329, 2 L.Ed.2d 77, and United States ex rel.
Fletcher v. Cavell, 3 Cir., 287 F.2d 792, cert. denied 366 U.S. 944, 81 S.Ct.
1672, 6 L.Ed.2d 855. Nor is this case like Photostat Corp. v. Ball, 10 Cir., 338
F.2d 783, where a judgment was vacated because of the failure of several
prospective jurors to disclose information requested on voir dire examination.
The question there propounded, although apparently misunderstood by the
jurors, was such as to require a disclosure of the desired information, which
"was withheld through no fault of the unsuccessful litigant." There is no
indication in the present case, however, that there was any question or comment
which might possibly have alerted the juror to the advisability of not serving as
a juror in appellant's trial. United States ex rel. Luzzi v. Banmiller, 3 Cir., 248
F.2d 303, cert. denied 355 U.S. 924, 78 S.Ct. 367, 2 L.Ed.2d 355.
12
Disruptive consequences to the trial of criminal cases are suggested by
permitting defense counsel to come forth after conviction and successfully
contend that, notwithstanding the absence of actual bias, and notwithstanding
his own failure sufficiently to pursue voir dire inquiry to expose possible
predilections on the part of a prospective juror, that nevertheless probable
prejudice must be imputed to the juror as a matter of law and a new trial
thereafter granted. "A disqualification which by reasonable diligence could
have been discovered before verdict, may not afterwards be made the subject of
an attack upon a verdict." Spivey v. United States, 5 Cir., 109 F.2d 181, 186,
cert. denied 310 U.S. 631, 60 S.Ct. 1079, 84 L.Ed. 1401.
13
Therefore, in the absence of any non-disclosure, intentional or inadvertent, from
which it can be conclusively presumed that there was so obvious a
disqualification and inherent prejudice as a matter of law, Frazier v. United
States, 335 U.S. 497, 513, 69 S.Ct. 201, 93 L.Ed. 187, reh. denied 336 U.S.
907, 69 S.Ct. 488, 93 L.Ed. 1072, we hold that the action of the court below in
denying the motion for new trial was not a clear abuse of discretion.
14
And finally, it is urged that the trial court erred in not allowing the appellant to
exhibit to the jury a scar on his body. Such physical exhibits are proper only
where it is shown that they are relevant to the case. Brown did not testify, and
no proper foundation was laid for the showing of the scar. 22A C.J.S. Criminal
Law 716b; State v. Wendler, 83 Idaho 213, 360 P.2d 697. The request to
exhibit the scar was properly denied.
15
Affirmed.
Notes:
1
The Court stated that it could not "place any credence in the statement the
Defendant makes as to what was said to him while he was down in the hole at
the segregation building in which he claims they that he was threatened."
