U.S. v. Lord
| Decision Date | 15 November 1977 |
| Docket Number | 125,126,Nos. 124,D,s. 124 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. James R. LORD, Jr., Gerald J. Yagy, and Gerhardt J. Schwartz, Defendants-Appellants. ockets 77-1157, 77-1158, 77-1159. |
| Court | U.S. Court of Appeals — Second Circuit |
Alfred P. Kremer, Rochester, N. Y., for defendant-appellant Lord.
Roy E. Colicchio, Rochester, N. Y., for defendant-appellant Yagy.
Barry Bassis, New York City (William J. Gallagher, The Legal Aid Society, Federal Defender Services Unit, New York City, of counsel), for defendant-appellant Schwartz.
Gerald J. Houlihan, Asst. U. S. Atty., Rochester, N. Y. (Richard J. Arcara, U. S. Atty. for the Western District of New York, Buffalo, N. Y., of counsel), for plaintiff-appellee.
Before MANSFIELD and TIMBERS, Circuit Judges, and DOOLING, District Judge. *
After a four-day trial in the Western District of New York before Judge John T. Elfvin and a jury, appellants Lord, Yagy and Schwartz were convicted of bank robbery, 18 U.S.C. § 2113(a), and conspiracy to commit bank robbery, 18 U.S.C. § 371. Lord and Schwartz were also convicted of armed bank robbery, 18 U.S.C. § 2113(d). We reverse because of two errors that seriously jeopardized the defendants' right to a fair trial: (1) the Government's disclosure to the entire venire during jury selection of highly prejudicial information that was later excluded from evidence, and (2) the district court's refusal during the course of the trial to inquire whether members of the jury had seen or read newspaper articles containing prejudicial information not in evidence.
On April 9, 1976, the Columbia Banking Savings and Loan Association in Rochester, New York, was robbed of approximately $43,365 by two armed men wearing stocking masks, coveralls and gloves.
The evidence adduced at trial showed that Lord and Schwartz entered the bank and carried out the robbery. Yagy's role was that of mastermind and planner, who did not participate in the execution of the crime but conferred in advance with the others and recruited 17-year old Ronald Hook, a delivery boy in his Rochester, New York, pizzeria, to drive the getaway car. All four shared in the proceeds. Three months after the robbery Lord and Schwartz, for reasons that are not entirely disclosed in the record, assaulted Hook, stabbing him with an ice pick approximately 45 times. Hook, who was not indicted, survived and became the Government's principal witness.
At trial Hook incriminated the defendants, describing the planning and execution of the crime and the part played by each of the defendants in it. 1 He further indicated that the stabbing incident was not connected with the bank robbery. However, the reason or reasons for the stabbing remained undisclosed. In addition, the Government relied upon a confession given by Schwartz to agents of the Federal Bureau of Investigation admitting his involvement, which was received against him only. The Government also offered the testimony of an FBI agent that when interviewed less than seven hours after the robbery Lord had $1,300 in his possession, even though he had been unemployed for several months. Lord told the agent that he had been at the hospital visiting his mother at the time of the robbery. Testimony of a hospital nurse, however, would permit a jury to infer that In March 1977 Schwartz was sentenced to 25 years imprisonment on the bank robbery counts and five years on the conspiracy charge, to run consecutively. Yagy was sentenced to 10 years imprisonment on the bank robbery count and five years on the conspiracy count, to run consecutively, and Lord was sentenced to 20 years on the bank robbery counts and five years on the conspiracy count, to run consecutively. Upon this appeal from the judgments of conviction numerous errors are claimed by the appellants, only a few of which warrant discussion.
Lord's alibi was false. Another witness, Dennis Wakefield, testified that one week prior to the Columbia Savings and Loan robbery Lord and Schwartz disclosed to him their plan to rob a bank.
At a pretrial conference approximately one month before trial, defense counsel moved to preclude any evidence of the stabbing incident from the trial on the ground that it was unrelated to the bank robbery and unfairly prejudicial. The Government opposed the motion, contending that "one of the reasons" for the assault was "Hook's threat to disclose their (appellants') involvement in the Columbia bank robbery" and that evidence of the assault was admissible as proof of "the guilty minds of the defendants." 2 The court denied the motion without prejudice to its renewal but prophetically observed that "great prejudice . . . attends that evidence."
On February 8, 1977, jury selection commenced. During voir dire of the jury panel, the prosecutor, without advance notice to the court or parties, stated in the presence of the entire venire:
"One of the Government witnesses in this case is a young man named Ronald Hook, and there was some publicity concerning Mr. Hook at one time as to the fact that he was stabbed some 45 times. . . ."
All defense counsel immediately moved for a mistrial, arguing that the jury panel had been irreparably exposed to unfairly prejudicial information that would make impossible the jurors' impartial evaluation of the evidence in the case. The court denied the motions, but repeatedly warned the prosecutor that a mistrial would be declared if the Government failed to establish the admissibility of the evidence concerning the assault.
When the voir dire resumed, a member of the panel responded to the prosecutor's comment by stating within the presence and hearing of all other prospective jurors, Motions for a mistrial were renewed and denied. Another member of the panel then offered the candid opinion that knowledge of the stabbing would lend credence to Hook's testimony. Again motions for a mistrial were made and denied. The jury was then selected from the panel that had heard the references to the assault. 3
Three days later, when the Government in its examination of Hook as its witness sought to establish the relevance of the assault to the Columbia bank robbery conspiracy through Hook's testimony, Hook denied that he had been attacked because of appellants' fear that he would inform the police about the bank robbery. 4 The court immediately prohibited any further questioning about the meeting that culminated in the assault and ruled, out of the jury's presence, that "Mr. Hook has taken away all relevancy to the stabbing episode by his answer that it had nothing to do with the bank robbery." Defense counsel once again renewed their motions for a mistrial, which were once more denied.
In view of the serious inflammatory impact which disclosure of the stabbing incident might have upon the jury, it was obviously improper for the prosecutor unilaterally to inform the panel of the matter, even if he believed that proof of it would later be admitted as evidence of guilty consciousness on the part of the defendants, United States v. Cirillo, 468 F.2d 1233, 1240 (2d Cir. 1972), cert. denied, 410 U.S. 989, 93 S.Ct. 1501, 36 L.Ed.2d 188 (1973). We are not persuaded by the Government's argument that it was appropriate to inject the incident into the case at this early stage in order to determine whether the jurors might have been prejudiced by publicity that had been given to the incident when it occurred. It was most unlikely that the Government would suffer prejudice from this publicity; only the defendants could be hurt. Under the circumstances it was for defense counsel rather than the Government to determine what type of voir dire questioning would best protect the defendants' right to a fair trial. Since defense counsel had, by their motion to exclude the assault evidence, made it clear that they believed it to be in their clients' interest to leave the matter alone we cannot accept the argument that the prosecutor acted out of solicitude for their interests rather than because disclosure of the information might help the Government's case against them.
Confronted with the prosecutor's highly inflammatory and improper remark, the district judge erred in not either declaring a mistrial immediately, with directions that jury selection commence as soon as a new, uncontaminated panel could be convened, or conducting a preliminary hearing outside of the panel's presence to determine whether it was likely that evidence of the stabbing would properly be admissible during the trial, in which event selection of the jury could be resumed from the same panel. 5 In any event, whether or not a mistrial was required during jury selection, it became imperative when the Government not only failed to elicit that the stabbing was relevant to the robbery but, on the contrary, brought out that it was unrelated. In our view the trial judge at that point should certainly have adhered to his originally-expressed intent to declare a mistrial.
The attempt on Hook's life is the type of evidence that, even if relevant, might have to be excluded because of its potential for creating unfair prejudice. Fed.R.Evid. 403. Cf. United States v. Panebianco, 543 F.2d 447 (2d Cir. 1976); United States v. Malizia, 503 F.2d 578 (2d Cir. 1974) (). Disclosure of less inflammatory information has been held to be a proper ground for the declaration of a mistrial. See, e. g., United States v. Gentile, 525 F.2d 252 (2d Cir. 1975) (); United States v. Cook, 530 F.2d 145 (7th Cir. 1976) (...
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