United States v. Chrisco

• Decision Date: 14 March 1974
• Docket Number: No. 73-1101,73-1145.,73-1101
• Citation: 493 F.2d 232
• Parties: UNITED STATES of America, Appellee, v. Delmar Earl CHRISCO, Appellant. UNITED STATES of America, Appellee, v. Lewis HOWELL, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

493 F.2d 232 (1974)

UNITED STATES of America, Appellee, v. Delmar Earl CHRISCO, Appellant.

UNITED STATES of America, Appellee, v. Lewis HOWELL, Appellant.

Nos. 73-1101, 73-1145.

United States Court of Appeals, Eighth Circuit.

Submitted September 12, 1973.

Decided March 14, 1974.

COPYRIGHT MATERIAL OMITTED

Robert Garfield, and Thomas C. Palmer, St. Louis, Mo., for appellants.

Michael W. Reap, Asst. U. S. Atty., St. Louis, Mo., for appellee.

Before GIBSON and BRIGHT, Circuit Judges, and TALBOT SMITH,^* Senior District Judge.

BRIGHT, Circuit Judge.

Appellants Delmar Earl Chrisco and Lewis Howell were tried before a jury in the United States District Court for the Eastern District of Missouri in January 1973 and convicted of robbing the Bank of St. Mary's in St. Mary's, Missouri, on August 3, 1972, in violation of 18 U.S.C. § 2113. On appeal, they raise a total of 12 separate allegations of error. We have examined each ground of error but find no grounds for reversal. Two grounds merit detailed discussion —those relating to the impaneling of the jury and to the prosecutor's closing argument.

I.

In their briefs and at oral argument, appellants Chrisco and Howell strongly urged that it was plain error for them to be removed from the courtrooom involuntarily during the peremptory challenges of the jury. This contention, if proved true, presents a serious constitutional challenge to the conduct of their trial.

The right of a defendant to be present during the process of impaneling the jury was enunciated long ago by the Supreme Court. See Pointer v. United States, 151 U.S. 396, 408, 14 S.Ct. 410, 38 L.Ed. 208 (1894); Lewis v. United States, 146 U.S. 370, 376, 13 S.Ct. 136, 36 L.Ed. 1011 (1892); Hopt v. People of the Territory of Utah, 110 U.S. 574, 579, 4 S.Ct. 202, 28 L.Ed. 262 (1884). More recently, the Supreme Court has held this principle to be guaranteed through the confrontation clause of the sixth amendment, see Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 25 L. Ed.2d 353 (1970), and lower courts have regularly found a due process dimension to it. See Bustamante v. Eyman, 456 F.2d 269, 273 (9th Cir. 1972); United States v. Crutcher, 405 F.2d 239, 242-243 (2d Cir. 1968), cert. denied, 394 U. S. 908, 89 S.Ct. 1018, 22 L.Ed.2d 219 (1969); Parker v. United States, 184 F.2d 488, 490 (4th Cir. 1950); Fina v. United States, 46 F.2d 643, 644 (10th Cir. 1931). Fed.R.Crim.P. 43 explicitly embodies this principle, stating that: "The defendant shall be present * * * at every stage of the trial including the impaneling of the jury * * *."

Because the transcript in this case was devoid of details concerning the selection of the jury, we issued an order, reported at 487 F.2d 505 (8th Cir. 1973), which reads in pertinent part as follows:

We remand this case to the trial court for preparation of an appropriate record of the proceedings in the impaneling of the jury, including a showing of whether appellants were present in court during the exercise of their peremptory challenge by counsel. Additionally, * * * the record should include any circumstances, not presently disclosed in the transcript, bearing on the issue of whether there was a knowing and voluntary waiver of their right to be present at the peremptory challenge stage. 487 F.2d at 506.

That supplementary record is now before us, and the following facts appear uncontested:

1) Appellants Chrisco and Howell were present in the courtroom during the entire voir dire of the jury and during the strikes for cause on January 10, 1973;

2) Appellants were removed from the courtroom immediately prior to the noon recess so that the veniremen would not see the defendants manacled outside the courtroom when the panel was excused for lunch;

3) Appellants were taken for lunch to the United States Marshal's office, which is on the same floor as the courtroom;

4) The judge declared the noon recess and the entire venire was taken out of the courtroom for lunch;

5) The judge then left the courtroom;

6) Defense counsel were aware that defendants would be kept in the United States Marshal's office during the noon recess;

7) Counsel for appellants and counsel for the Government briefly remained behind, made their peremptory strikes, and gave this list to the clerk of the court;

8) At approximately two o'clock, court was reconvened, and, in the presence of counsel for appellants, the entire venire was brought back into court and the list of strikes was read off by the clerk of the court, thus impaneling a jury of twelve;

9) At some point following the noon recess, the appellants were brought back into the courtroom and immediately registered with their counsel dissatisfaction regarding certain members of the venire who eventually served on the jury; and

10) This problem was discussed among the three defense attorneys, but neither the defendants nor their attorneys made any statements to the trial judge objecting to or questioning the impaneling of the jury.

The only disputed fact relating to the impaneling proceedings was whether the appellants were present in the courtroom when the list of strikes was read off and the jury sworn. At the supplementary hearing on this matter, the appellants and two of their three defense counsel testified that, to the best of their recollection, the defendants were not brought back into the courtroom until after the jury had been sworn. The bailiff and the clerk of the court, on the other hand, testified that the rigidly-adhered-to practice of the court was to have the defendants present when the strikes were called off and the jury sworn. When pressed on the matter, however, none of these witnesses could assert a clear memory of the specific events in question.

At the conclusion of the supplementary hearing, the trial judge stated:

But I think the record should show that all the proceedings after the recess went on were in open Court and before all of counsel and both defendants. In other words, at the time the results of the strikes were called out, that that was done in open Court.

We accept this statement as the court's finding of fact as well as a summary of his personal recollection on the question of the defendants' presence when the list of strikes was read off and the jury sworn. The legal question remains for us to decide whether, on the facts above, appellants have shown a violation of their constitutional rights or a violation of their procedural rights under Fed.R. Crim.P. 43 amounting to plain error under Fed.R.Crim.P. 52(b). On the record before us, we think not.

To be sure, the process of "impaneling" a jury—at which Fed.R.Crim. P. 43 insures the defendants' presence —encompasses all the steps of selecting a jury, including the peremptory striking of members of the venire.

Although the appellants were absent from the courtroom when their counsel informally conferred and made their strikes, the trial court in the supplementary record has found that both appellants were present in the courtroom when those strikes were given actual effect by the clerk's reading off the list. Further, it seems clear from the record that appellants discussed their misgivings with counsel during or immediately following the formal impaneling process and that the decision was made by counsel not to raise any objection at that time.¹ Whether this decision was made as a result of tactical considerations² or as a result of inexperience and ignorance of the law³ is not material to our disposition of this case, for we hold that under the facts shown the appellants were sufficiently "present" at the impaneling of the jury to satisfy Fed.R.Crim.P. 43 and the Constitution, since they both observed the strikes being read off and registered their opinions of the venire with their counsel.⁴

While no error is thus shown on this record, we wish to make it clear that the trial court has a responsibility to make sure that defendants are given an ample opportunity to confer with their counsel during all phases of the jury selection process including the exercise of peremptory strikes.⁵ As the Second Circuit has stated in United States v. Crutcher:

There is no way to assess the extent of the prejudice, if any, a defendant might suffer by not being able to advise his attorney during the impaneling of the jury. * * * We can only speculate as to what suggestions the defendant might or might not have made, since it would be his prerogative to challenge a juror simply on the basis of the "`sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another.\'" Blackstone\'s Commentaries, quoted in Lewis v. United States, 146 U.S. at 376, 13 S.Ct. 136. 405 F.2d at 244.

The slight additional burden on the criminal justice process which is wrought by such a requirement is more than offset by the avoidance of lengthy appeals and remands—like the case at bar—to determine if the mandate of Rule 43 and the Constitution have been met.

II.

Appellants have also claimed error in the prosecutor's remarks during closing argument. After several heated exchanges between defense counsel and the prosecution, the Government began its rebuttal argument by criticizing defense counsel's theory that the F.B.I.'s pretrial photographic identification procedures related to defendant-Chrisco had been suggestive. The prosecutor then concluded:

Well, we don\'t operate that way, my friends. That\'s not the point of it at all. The point of it all is we don\'t prosecute people for crimes they don\'t commit.

Such a statement is, of course, error, for it amounts to an appeal to the jury to substitute the power, prestige, and integrity of the Government for a neutral determination of the facts. See United States v. Lamerson, 457 F.2d 371, 372 (5th Cir. 1972); Hall v. United States, 419 F.2d 582, 587 (5th Cir. 1969).

At oral argument in this appeal, the Government confessed error on this point, but urged that it was not...