U.S. v. Shepherd

• Decision Date: 06 July 1978
• Docket Number: No. 77-1130,77-1130
• Citation: 576 F.2d 719
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald W. SHEPHERD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 719

576 F.2d 719

UNITED STATES of America, Plaintiff-Appellee, v. Ronald W. SHEPHERD, Defendant-Appellant.

No. 77-1130.

United States Court of Appeals Seventh Circuit.

Argued Dec. 5, 1977.

Decided May 8, 1978.

Rehearing Denied June 15 and July 6, 1978.

Stephen L. Trueblood, Terre Haute, Ind., Ronald E. Hahn, Chicago, Ill., Norman L. Lowery, Terre Haute, Ind., for defendant-appellant.

Bradley L. Williams, Asst. U. S. Atty., Indianapolis, Ind., for plaintiff-appellee.

Before FAIRCHILD, Chief Judge, TONE, Circuit Judge, and CAMPBELL, Senior District Judge. ^*

TONE, Circuit Judge.

Ronald W. Shepherd was one of four prisoners serving sentences in the federal penitentiary at Terre Haute, Indiana, who were tried before a jury under an indictment charging that they murdered a fellow prisoner in violation of 18 U.S.C. § 1111. The jury found Shepherd and two other defendants guilty and the fourth not guilty. After the foreman had announced these verdicts but before the jury was polled, the judge made certain remarks in the jury's presence that Shepherd argues require a new trial because of their impairment of the right of polling. Also, Shepherd argues that he was charged with a capital crime and that therefore his request under 18 U.S.C. § 3005 for two attorneys should have been granted. We reject these and other arguments and affirm the conviction.

The appeals of Shepherd and the two other defendants were heard together. Only Shepherd raises the two issues described above. His other arguments and the arguments of the other defendants raise issues concerning the application of recognized rules of law to the particular facts of the case and are therefore disposed of by unpublished order under Circuit Rule 35.

I.

A.

Owing to severely inclement weather and the fact that the defendants and many of the trial witnesses were prisoners, the trial was conducted over eight consecutive days, and usually well into the evening hours. The jury retired to deliberate on its verdicts at approximately 4:00 P. M. on Monday, January 24, 1977. In his instructions and admonitions to the jury before they retired, the judge stated that after they returned their verdict they would be polled individually, and that their verdict must be unanimous. The record shows no inquiries or other communications by the jury to the court until the return of the verdicts at noon on the following day.

After the clerk announced the verdicts finding Shepherd, Vaughn, and Cantrell guilty and Sparks not guilty, counsel for all parties examined the verdict forms, each of which was signed by the foreman only and stated that the jury had reached its verdict and what that verdict was. The judge then called Sparks, the acquitted defendant, before the bench, and the following occurred:

The Court: Mr. Sparks, this jury has found you not guilty of the crime of murder, second-degree murder, and voluntary manslaughter. You know whether you were guilty or not, and you are just the beneficiary of a very fine lawyer and this great judicial system that this country has, and our great Constitution.

Many a jury would have found you guilty: you had the gun together with these other men. You stood there at the

Mr. Sparks: A lie, your Honor.

The Court: Mr. Lippie didn't testify you put your hand on him, right on the dead man; because of some other misconduct on the part of Mr. Lippie he wasn't used as a witness, you understand.

Mr. Sparks: Yes, sir.

The Court: You are discharged. You have to live with these other men, and you know whether you were or not. You are just a very, very fortunate man.

I only hope, by liberation of you, that there isn't somebody else killed out in this penitentiary because they get away with it. We had twelve of them get away with it a year ago, and so long as you have that kind of a system working there will be some people continue to kill people in the penitentiary. Inmates in the penitentiary are entitled to have the protection of law, just like other citizens have, and you are still there, still committing the crimes.

Now will the marshal remove him? We'll process the other defendants.

The Court thanks you, counsel for your excellent service in representing this man.

All defense counsel remained silent throughout this colloquy, at the conclusion of which the judge offered all counsel the opportunity to poll the jury. Counsel for Vaughn then polled the jury, addressing each juror individually. ¹ All twelve jurors confirmed their verdict. Counsel for Shepherd, before polling the jury, moved for a mistrial on the ground that the court's "admonishment" of defendant Sparks had "effectively denied his (Shepherd's) right to poll the jury." The motion was denied, and Shepherd's counsel then proceeded to poll the jurors, each of whom confirmed his verdict. Counsel for defendant Cantrell then polled the jurors with the same result.

After the individual polls were conducted, the judge addressed the jury as follows:

It appears the verdict as to the three defendants is unanimous.

Now, ladies and gentlemen, you heard the verdicts that were read in open court here in your presence, in the presence of the parties and the lawyers here. Were the verdicts that were read in open court your verdicts upstairs, unanimously before you came downstairs and heard the verdicts read in open court? If not, would you hold up your hand?

None of the jurymen have held up their hands, and by your conduct in not holding up your hands you have undertaken to say that each of you voted for conviction of these three defendants as the verdicts say in writing, here, and signed and each one is signed by your foreman, and you so say that you voted for such conviction in the privacy of your jury room before you came down here.

If there is any question about this, hold up your hand.

None of the jurymen have held up their hand, so your verdicts were returned in the privacy and made up in the privacy of the jury room, unanimously.

The judge then ordered the entry of judgments of guilty.

B.

The government argues that Shepherd should be precluded from asserting the alleged error by his counsel's failure to object until after the judge had finished his remarks and was ready to poll the jury, at which time it was too late for prevention of any error. Noting that counsel could have prevented any damage by reminding the court that the jury had not been polled, and that he was alert enough to move for a mistrial when it was his turn to poll the jury, we find some merit in this argument. In view of the unexpected turn of events, however, and the unusual situation confronting counsel, we hold that his conduct did not amount to a waiver. See Fed.R.Crim.P. 51; cf. United States v. Panczko, 429 F.2d 683, 686 (7th Cir.), cert. denied, 400 U.S. 946, 91 S.Ct. 253, 27 L.Ed.2d 252 (1970).

The government also relies upon the rule that a federal district judge may comment on the evidence. See Capital Traction Co. v. Hof, 174 U.S. 1, 13-14, 19 S.Ct. 580, 43 L.Ed. 873 (1899); United States v. Natale, 526 F.2d 1160, 1166-1167 (2d Cir. 1975), cert. denied, 425 U.S. 950, 96 S.Ct. 1724, 48 L.Ed.2d 193 (1976); United States v. DePugh, 434 F.2d 548, 554-555 (8th Cir. 1970), cert. denied, 401 U.S. 978, 91 S.Ct. 1208, 28 L.Ed.2d 328 (1971). That rule may justify the judge's statement about a gun, by which he must have meant, and the listeners must have understood him to mean, knife, since there was no evidence of a gun. If "knife" is substituted for "gun," the fact stated was established by overwhelming evidence and not refuted in any way. The rule would not, however, justify other parts of the judge's remarks, which therefore must be tested under the harmless error doctrine. Fed.R.Crim.P. 52(a).

C.

To decide whether the error was harmless, we inquire not whether the defendant was in fact guilty but "what effect the error had or reasonably may be taken to have had upon the jury's decision." Kotteakos v. United States,328 U.S. 750, 764, 66 S.Ct. 1239, 1247, 90 L.Ed. 1557 (1946) (per Rutledge, J.). The inquiry must "take account of what the error meant to (the jury), not singled out and standing alone, but in relation to all else that happened." Id. If we are convinced that "the error did not influence the jury, or had but very slight effect," and can say "with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error," we should hold the error harmless. Id. at 764, 765, 66 S.Ct. at 1248. See also United States v. Panczko, supra, 429 F.2d at 686-688. Relevant to this inquiry are the stage of the case at which the error occurred, whether the objectives designed to serve the polling procedure were attained despite the error, and the evidence of Shepherd's guilt, not, however, for its effect in convincing us, but for its probable effect in convincing reasonable jurors.

D.

The fact that the judge's comments were made not during the trial, but after the jury's deliberations, is significant. The possibilities to be assessed here are either (a) that the jury, having been instructed that its verdict must be unanimous, nevertheless returned to the courtroom and announced a verdict that was not unanimous, and the dissenting juror or jurors were intimidated into remaining silent by the judge's comments; or (b) that one or more jurors, after having joined in the unanimous verdict, would have changed their minds absent the judge's comments. These possibilities are obviously far less likely than the possibility that the same error, if it had occurred during the trial, would have affected the verdict. The Fifth Circuit has said:

The right of a defendant to poll the jury is of course recognized and long established, but from a practical standpoint, experience of the years has shown that its benefit to a defendant in effecting a change or modification of the jury's verdict is substantially nonexistent.

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