Moore v. U.S., 78-3455

Citation598 F.2d 439
Decision Date09 July 1979
Docket NumberNo. 78-3455,78-3455
Parties, 4 Fed. R. Evid. Serv. 623 Bobby Lee MOORE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Robert G. Wellon, Atlanta, Ga., for petitioner-appellant.

William L. Harper, U. S. Atty., Dorothy Y. Kirkley, Asst. U. S. Atty., Atlanta, Ga., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before TUTTLE, GODBOLD and RUBIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

The trial judge in this jury case asked the defendant a number of questions, and commented, outside the hearing of the jury, on whether it was advisable for the defendant to offer the testimony of his thirteen year old son. This application for post-conviction relief under 28 U.S.C. § 2255 challenges the court's conduct.

Appellant Moore was convicted of possession of non-tax paid whiskey in violation of 26 U.S.C. § 5604(a)(1) in 1976 after a jury trial. His conviction was affirmed by this court on May 6, 1977. On May 18 Moore petitioned for rehearing, and his newly retained counsel filed an amended brief on Friday, June 10. In the amended brief on petition for rehearing, Moore first raised the claims we confront here. On Monday, June 13, the petition for rehearing was denied without opinion.

Moore contends that the trial judge improperly interjected himself into the trial process, interrupting defense counsel and assuming the burden of questioning the defendant on the stand. These actions, he claims, conveyed to the jury the impression that the judge doubted the defendant's credibility and considered him guilty, thereby denying him the fundamentally fair trial that he is constitutionally guaranteed.

In addition, Moore finds coercion, hence impropriety, in a colloquy between the trial judge and himself regarding his intention to call his thirteen year old son as a corroborative witness, and argues that this denied him the right to present a defense.

The government suggests that, because he raised these claims in the amended brief on petition for rehearing, Moore is now foreclosed by our denial of that petition from urging them again on collateral attack. Although we conclude that the claims are properly before us for consideration, we find no merit in them and accordingly deny the petition for relief.

I. Government's Claim of Preclusion

If issues are raised and considered on direct appeal, a defendant is thereafter precluded from urging the same issues in a later collateral attack. E. g., Buckelew v. United States, 5 Cir. 1978, 575 F.2d 515, 517-18; Vernell v. United States, 5 Cir. 1977, 559 F.2d 963, 964, Cert. denied, 1978, 435 U.S. 1007, 98 S.Ct. 1876, 56 L.Ed.2d 388; Blackwell v. United States, 5 Cir. 1970, 429 F.2d 514, 516. A defendant is, of course, entitled to a hearing of his claims, but not to duplicate hearings. The appellate process does not permit reruns.

We are not, however, convinced that Moore has had his day in court on these issues. Absent exceptional circumstances, this court will not consider new matters raised for the first time in a petition for rehearing. See, e. g., Minute Maid Corp. v. United Foods, Inc., 5 Cir. 1961, 291 F.2d 577, 585-86, Cert. denied, 368 U.S. 928, 82 S.Ct. 364, 7 L.Ed.2d 192; De Witt v. Sorenson, 5 Cir. 1961, 290 F.2d 562. See also Jamestown Farmers Elevator, Inc. v. General Mills, Inc., 8 Cir. 1977, 552 F.2d 1285, 1295-96; Bullock v. Mumford, 1974, 166 U.S.App.D.C. 51, 55, 509 F.2d 384, 388. Cf. United States v. LePatourel, 8 Cir. 1978, 571 F.2d 405, 410-11 (declining to deal with alternative claim raised in petition for rehearing, but remanding to the district court for plenary evidentiary hearing on the matter).

Such a belatedly raised issue may be considered in special situations. As explained in United States v. Sutherland, 5 Cir. 1970, 428 F.2d 1152, 1158, Appeal after remand, 1972, 463 F.2d 641, Cert. denied, 409 U.S. 1078, 93 S.Ct. 698, 34 L.Ed.2d 668, in which the court refused to consider a new issue presented by the government in its petition for rehearing:

The point was not raised in the court below Nor has it been previously raised in this court. Having tried and appealed its case on one theory, an unsuccessful party may not then use a petition for rehearing as a device to test a new theory. . . . We certainly do not regard this case as presenting extraordinary circumstances which would justify our considering on petition for rehearing, issues which were not previously presented. (Emphasis in original.)

See also United States v. Levine, 5 Cir. 1977, 551 F.2d 687, 688 (court considered document attached to petition for rehearing, although not part of record on appeal, to conclude that petition for rehearing should be denied).

While we doubt that the present case is one of those extraordinary ones in which a panel would consider on petition for rehearing grounds not previously urged, we need not make this determination nunc pro tunc. Although the panel had the authority to consider the new matters if it deemed the circumstances extraordinary, we will not infer that it took this unusual step absent explicit indication in the denial of the petition for rehearing. Because the order denying the petition provides us no such indication, we must assume that the panel, following our general practice, did not consider these claims. 1 They are therefore properly before us now.

II. Judicial Interference in the Trial Process

It is axiomatic, as stated in Herman v. United States, 5 Cir. 1961,289 F.2d 362, 365, Cert. denied, 368 U.S. 897, 82 S.Ct. 174, 7 L.Ed.2d 93, that "(t)he trial judge has a duty to conduct the trial carefully, patiently, and impartially. He must be above even the appearance of being partial to the prosecution." See also Blumberg v. United States, 5 Cir. 1955, 222 F.2d 496, 501; Hunter v. United States, 5 Cir. 1932, 62 F.2d 217, 220. On the other hand, a federal judge is not a mere moderator of proceedings. See Herron v. Southern Pacific Co., 1931, 283 U.S. 91, 95, 51 S.Ct. 383, 384, 75 L.Ed. 857. He is a common law judge having that authority historically exercised by judges in the common law process. He may comment on the evidence, Quercia v. United States, 1933, 289 U.S. 466, 469, 53 S.Ct. 698, 699, 77 L.Ed. 1321, may question witnesses and elicit facts not yet adduced or clarify those previously presented, Kyle v. United States, 5 Cir. 1968, 402 F.2d 443, 444; Fed.R.Evid. 614(b), and may maintain the pace of the trial by interrupting or cutting off counsel as a matter of discretion, United States v. Hill, 5 Cir. 1974, 496 F.2d 201, 202. Only when the judge's conduct strays from neutrality is the defendant thereby denied a constitutionally fair trial. United States v. Jacquillon, 5 Cir. 1972, 469 F.2d 380, 387, Cert. denied, 1973, 410 U.S. 938, 93 S.Ct. 1400, 35 L.Ed.2d 604.

After the defendant here was examined by his own counsel and cross-examined by the prosecutor, the trial judge undertook an independent examination, asking 105 questions as compared with the 41 propounded by defense counsel and 66 by the prosecutor. While such statistical comparisons are not without significance, "(t)he tenor of the court's questions rather than their bare number is the more important factor." United States v. Hoker, 5 Cir. 1973, 483 F.2d 359, 366. In this regard, we cannot agree with Moore's characterization of the trial judge's examination as "stringent and often irrelevant." While not all questions asked by the court were equally probing, the thrust of the examination was evidently directed at eliciting information about Moore and his activities on the day in question not provided during direct and cross-examinations. Unlike such cases as United States v. Sheldon, 5 Cir. 1976, 544 F.2d 213, Hoker, supra, and United States v. Lanham, 5 Cir. 1969, 416 F.2d 1140, in which we found the judicial conduct perilously close to that of an advocate for the prosecution and implicitly designed to suggest to the jury that the judge believed "the defense was without merit or that the defendants and their witnesses were worthy of scant belief," Sheldon, supra, 544 F.2d at 219, the court's questioning here was unbiased, patient and temperate, never argumentative or accusatory. Indeed, Moore points to no specific instances of biased interrogation, but claims only that the mere fact of judicial questioning to this extent tends to focus the jury's attention on the defendant's testimony and indicates some question of credibility in the judge's mind. To embrace such a suggestion would in effect amount to adoption of a per se rule limiting judicial questioning to a specific number of questions, or to a certain proportion of the sum of inquiries made by defense counsel and prosecution; such a rule is inconsistent with the common law prerogatives of the trial judge secured by the Constitution to federal courts. Quercia v. United States, supra, 289 U.S. at 469, 53 S.Ct. at 699, 77 L.Ed. at 1325.

From a reading of the entire transcript, it is evident that the experienced trial judge played an active role at trial, as is his prerogative and may in some circumstances be his duty. See, e. g., Grant v. United States, 5 Cir. 1969, 407 F.2d 56, 58, Quoting United States v. Ostendorff, 4 Cir. 1967, 371 F.2d 729, 732, Cert. denied, 386 U.S. 982, 87 S.Ct. 1286, 18 L.Ed.2d 229; Hellman v. United States, 5 Cir. 1964, 339 F.2d 36, 37. See generally 3 J. Wigmore, Evidence in Trials at Common Law § 784 at 189-90 (Chadbourn rev. 1970). No objection was made to his conduct at the time although he specifically provided counsel an opportunity to raise objections. Finally, in what might be a model charge, he instructed the jury clearly that they were the sole fact-finders in the case. 2 Under these circumstances, we cannot find any constitutional deficiency. As we stated in United States v. Davis, 5 Cir. 1977, 546 F.2d...

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