United States v. Gray
| Decision Date | 03 October 1972 |
| Docket Number | No. 71-1430.,71-1430. |
| Citation | 468 F.2d 257 |
| Parties | UNITED STATES of America v. Larry J. GRAY, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
John Rogers Carroll, Philadelphia, Pa., for appellant.
Walter S. Batty, Jr., Asst. U. S. Atty., Philadelphia, Pa., for appellee.
Before SEITZ, Chief Judge, and KALODNER and GIBBONS, Circuit Judges.
Before SEITZ, Chief Judge, and KALODNER, VAN DUSEN, ADAMS, GIBBONS, MAX ROSENN, JAMES ROSEN and HUNTER, Circuit Judges.
Reargued en Banc June 21, 1972.
Argued Dec. 2, 1971.
Before SEITZ, Chief Judge, and KALODNER and GIBBONS, Circuit Judges.
Reargued en Banc June 21, 1972.
Before SEITZ, Chief Judge, and KALODNER, VAN DUSEN, ADAMS, GIBBONS, MAX ROSENN, JAMES ROSEN and HUNTER, Circuit Judges.
This is an appeal by the defendant Larry J. Gray from a judgment of conviction pursuant to a jury verdict finding him guilty of bank robbery in violation of 18 U.S.C.A. § 2113(a) and (b).
Gray contends that prejudicial errors were committed in his trial when the prosecutor, in cross-examination, asked him this question: , and when the government, in its case-in-chief, adduced testimony that Gray had suffered prior imprisonment.
Gray does not contend that the trial evidence was insufficient to sustain his conviction. Nor does he now press an initial contention that the trial judge erred in refusing to grant him a requested instruction on identification. We find no error in the identification instruction given to the jury by the trial judge.
The testimony relevant to our disposition may be summarized as follows:
About 11:30 a. m., June 17, 1968, the Fidelity Bank branch at 16th Street and John F. Kennedy Boulevard, Philadelphia, Pennsylvania, was robbed of $380.00 cash. A paying teller gave the money to the robber after he had handed her a penned threatening note demanding "a handful of 20 dollar bills." Gray was indicted on October 22, 1970. He was tried to a jury in January 1971. He was sentenced to a 10-year prison term.
Gray was identified as the hold up man by the paying teller who was robbed. Several other bank employees were unable to identify him, saying only that he resembled the hold up man.
A handwriting expert employed by the Federal Bureau of Investigation testified that Gray had written the hold up note used in the robbery, basing his opinion on his comparison of the note with handwriting and hand printing samples obtained from Gray. In order to establish the chain of possession of the handwriting samples, the government adduced the testimony of FBI Agent Schwein who had obtained them. Schwein testified that he had obtained two sets of samples, the first set on October 9, 1969, and the second set several days later.
After Schwein had testified that he had made "initial contact" with Gray on October 9, 1969, the prosecutor asked him "where?" and the answer was "at Holmesburg Prison." Gray's counsel did not object to the question nor did he move to strike the answer. Schwein further testified that after the FBI laboratory at Washington had requested additional samples, "I went back to the prison" and obtained them from Gray. (emphasis supplied). There was no objection to this latter testimony.
Gray took the stand in his own behalf. He presented an alibi defense, testifying that he was at work on the day and at the hour the bank robbery took place.
Seeking to cast doubt on the identification testimony of the paying teller who had described the robber as weighing about 150 pounds and wearing glasses, Gray said that at the time of the robbery in June 1968 he weighed 175 pounds and he did not wear glasses. He testified that he did not acquire glasses until March 1970 when "I had trouble reading in Holmesburg Prison while I was locked up waiting trial on my wife's death," and that "after my wife was killed, I lost quite a bit of weight."
It was at this point in Gray's testimony that the prosecutor asked him the question:
Defense counsel objected to the question; the prosecutor, in reply, said it was asked in an attack on Gray's credibility.
The jury was then excused. As later detailed, the trial judge severely criticized the prosecutor for asking the challenged question. The prosecutor said he had "a right" to impeach Gray's credibility by establishing his felony conviction for the voluntary manslaughter of his wife, and his conviction for robbery. In an ensuing discussion, it was developed that Gray had been convicted in July 1970, for the voluntary manslaughter of his wife in September 1969, some 15 months after the June 1968 robbery here involved. Defense counsel moved for a mistrial at this time and it was denied. The trial judge ruled, however, that the prosecutor could not question Gray with respect to any prior record.
The jury was then recalled to the courtroom and instructed as follows by the trial judge:
(italics supplied).
After Gray was found guilty he filed a motion for a new trial. In it he contended, inter alia, that the question was under the circumstances so inherently prejudicial that the trial judge erred in denying his trial motion for a mistrial.
The trial judge denied the motion for a new trial.
In doing so he said in relevant part:
It must be noted, parenthetically, that the trial judge, in his Opinion denying Gray's motion for a new trial, did not rely on, nor advert to, his cautionary instruction to the jury to "ignore" the prosecutor's challenged question anent Gray's killing of his wife.
We are of the opinion that the trial judge erred in denying Gray's motion for a new trial for these reasons:
That question, put to the defendant by the prosecutor in this robbery trial was grievous plain error, and the trial judge compounded it when he failed to declare a mistrial on the defendant's trial motion.
That the trial judge at the time was aware of the prejudicial dimension of the prosecutor's question, and his duty to declare a mistrial by reason of it, is demonstrated by his own statements. He then said:
(italics supplied).
Wife murder is an atrocious crime, revolting and abhorrent to the conscience of our society. No cautionary instruction could purge the jury's mind and memory of the devastating impact of the question The question irretrievably seared itself into the conscious and subconscious minds of the jury. The most valiant striving on the part of a conscientious juror to comply with the trial judge's admonition to "strike it from your minds entirely"; "just force it out"; "pay no attention to it whatsoever"; could in the case of some jurors only be an exercise in futility. To hold that the cautionary instruction was an effective detergent which completely laundered out of the jury's mind the impact of the prosecutor's question, is unrealistic and little less than fantasmagoria. A trial judge can "strike" evidence from notes of testimony; it is something else again to "strike" its searing impress from a juror's mind. Apt here, are these immortal lines:
"The Moving Finger writes; and, having writ, Moves on: nor all your Piety nor Wit, Shall lure it back to cancel half a Line, Nor all your Tears wash out a Word of it." Rubáiyát, Stanza 71.
The Supreme Court has held that cautionary admonitions of a trial judge are ineffective to erase from the minds of a jury the effects of prejudicial testimony. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
In Bruton, the Court, at page 129, quoted the following statement in Mr. Justice Jackson's concurrence in Krulewitch v. United States, 336 U.S. 440, at page 453, 69 S.Ct. 716, at page 723, 93 L.Ed. 790 (1949):
"The naive assumption that prejudicial effects can be overcome by instructions to the jury . . . all practicing lawyers know to be unmitigated fiction. . . ." (footnote omitted).
In United States v. Clarke, 343 F.2d 90 (3 Cir. 1965), we held that instructions to a jury to disregard inadmissible prejudicial testimony could not operate to cure the error of its introduction. Other Circuits are in accord. United States v. Nemeth, 430 F.2d 704, 706 (6 Cir. 1970); United States v. Rudolph, 403 F.2d 805, 807 (6 Cir. 1968); Maestas v. United States, 341 F.2d 493, 495-496 (10 Cir. 1965); Mora v. United States, 190 F.2d 749, 752-753 (5 Cir. 1951).
In holding that a cautionary instruction does not cure prejudice, Chief Judge Weick, speaking for the Court in United States v. Rudolph, supra, said:
"It must be remembered that after the saber thrust, the withdrawal of the saber still leaves the wound." (italics supplied).
In Maestas, the Court said (341 F.2d p. 496):
". . . where the character of the testimony is such that it will create...
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