U.S. v. Shavers, 79-5368

Citation615 F.2d 266
Decision Date08 April 1980
Docket NumberNo. 79-5368,79-5368
Parties5 Fed. R. Evid. Serv. 1304 UNITED STATES of America, Plaintiff-Appellee, v. Charles F. SHAVERS, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Joel Kaplan, Robyn Hermann, Asst. Fed. Public Defenders, Miami, Fla., for defendant-appellant.

A. Scott Miller, Sonia Escobio O'Donnell, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before HILL, KRAVITCH and THOMAS A. CLARK, Circuit Judges.

KRAVITCH, Circuit Judge.

Charles Shavers appeals his conviction of assault with a deadly weapon in violation of 18 U.S.C. § 113(c). 1 For the reasons stated below, we reverse.

I. Facts

This case arose out of an altercation at the Key West Naval Hospital in Key West, Florida, between appellant, a food service worker, and Rolle, a cook. Shavers complained to his supervisor that Rolle was in appellant's work area cutting Key Lime pies and interfering with his work. The supervisor asked Rolle to leave. Shortly after Rolle left he met Shavers in the restroom and allegedly struck him with brass knuckles.

Shavers reported the incident to Masterson, the food management officer. Masterson requested statements concerning the incident from both men. Shavers agreed, but Rolle refused. After taking Masterson to the scene of the beating and restating the events, appellant returned to the kitchen where he found Rolle cutting vegetables with a large knife. As he passed by the knife rack, appellant reached up, grabbed a butcher knife and moved in front of Rolle.

What happened next is hotly disputed. Masterson testified Shavers made several crossing swipes with his knife in front of Rolle. As Rolle fell back, Shavers slashed at him.

Shavers claimed he acted in self-defense. He testified that upon returning to the kitchen, he saw Rolle with a knife. Fearing Rolle, who earlier had beaten him and allegedly threatened to kill him, Shavers grabbed a knife to protect himself. When he perceived Rolle raising his knife, he swung his knife at Rolle.

On appeal Shavers challenges: (1) the court's refusal to ask defense-requested questions on voir dire, (2) the court's failure to declare a mistrial when the government on cross-examination impeached defendant with his prior silence, (3) a jury instruction which appellant argues amounted to directing a verdict, and (4) the court's admission of evidence of an extrinsic act allegedly committed by appellant.

II. Voir Dire

Appellant first argues that he was deprived of his right to an impartial jury when the judge refused to ask the following requested voir dire questions:

1) Have you or any of your relatives or close friends been the victim of a crime? If so, please state the following:

a) the nature of the crime

b) whether a gun, knife or other weapon was used.

14) Do you have any religious or philosophical beliefs which preclude you from believing that a person can justifiably use violence to protect himself from attack by another person?

16) Have you or any of your relatives or close friends suffered from any serious lacerations? If so, please state:

a) how the injury was inflicted

b) whether you or your relative/friend received any permanent damages from the injury.

18) Have you or your relatives or close friends ever been compelled to defend yourself (themselves) and/or your (their) property from attack? Have you or your relatives or close friends ever been provoked into a violent confrontation?

The purpose of voir dire is to allow a defendant to evaluate prospective jurors in order to select a fair and impartial jury. However, under Fed.R.Crim.P. 24(a) a trial court has broad discretion in conducting a voir dire. This discretion includes whether or not to submit suggested questions to the jury. United States v. Delval, 600 F.2d 1098, 1102 (5th Cir. 1979). 2

Delval established that the standard for evaluating the district court's exercise of its discretion is whether the means employed to test impartiality have created a reasonable assurance that prejudice would be discovered if present: "(T)he central inquiry is whether the district judge's 'overall examination, coupled with his charge to the jury, affords a party the protection sought' . . . " 600 F.2d at 1102-03 (citations omitted).

Here, appellant's submitted but unasked questions numbered 1 and 16 were for the purpose of inquiring into experiences which could cause a prospective juror to be prejudiced against appellant. United States v. Poole, 450 F.2d 1082 (3rd Cir. 1971). Certainly, a juror who has been the victim of a crime involving a knife or gun or who has suffered lacerations in an altercation might well be prejudiced against one charged with assault with a deadly weapon.

The trial judge refused to ask appellant's questions because he felt that they were "basically covered with the questions that were asked by the Court or were not really material so far as obtaining a fair and impartial juror."

We disagree. The district court's questions were too broad. 3 Inquiring generally about one's impartiality or participation in a criminal case as a witness or defendant fails to reach the important concerns highlighted in appellant's proposed questions and might not reveal latent prejudice. The court's questions did not afford Shavers the protection he sought and to which he was entitled under Delval. Appellant's proposed questions were "reasonably necessary to enable the accused to exercise his peremptory challenges" and "pertinent to the inquiry." Cook v. United States, 379 F.2d 966, 971-72 (5th Cir. 1969). Therefore, we find abuse of discretion on the part of the trial judge in refusing to ask questions 1 and 16.

III. Impeachment with Prior Silence

During the cross-examination of Shavers, the prosecutor, over objection, asked him if he had told the FBI agent investigating the incident that Rolle had hit him with brass knuckles. 4 Shavers replied that he had not because he was advised not to talk to the agent. Appellant appeals the denial of his motion for a mistrial.

It is settled law that prosecutorial comment on a defendant's silence for substantive or impeachment value is constitutionally prohibited. United States v. Dixon, 593 F.2d 626, 628 (5th Cir.) cert. denied, --- U.S. ----, 100 S.Ct. 126, 62 L.Ed.2d 82 (1979). The government does not dispute the fact that it referred to appellant's silence for purposes of impeachment. Rather, it argues that no error occurred because the record is unclear whether the questioning by the FBI agent was pre- or post-arrest; therefore it must be assumed that the interview occurred before appellant was placed under arrest and given Miranda warnings. According to the government, no error was then present because United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), and Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), do not apply to pre-arrest situations.

The government has overlooked our recent decision in United States v. Henderson, 565 F.2d 900, 902 (5th Cir. 1978), in which we held:

The silence of an accused who has not been given a Miranda warning cannot be used against him to impeach his credibility, unless his silence is inconsistent with his innocence and inconsistent with his exculpatory statement given at the trial. Otherwise, it lacks significant probative value and carries with it an intolerable prejudicial impact.

565 F.2d at 905. See also United States ex rel. Allen v. Rowe, 591 F.2d 391, 399 (7th Cir. 1979); but cf. United States v. Serrano, 607 F.2d 1145 (5th Cir. 1979) (silence found to be totally inconsistent with defendants' claim of innocence).

As a fallback position, the government submits that the error was harmless because the evidence of guilt was overwhelming. To support its position it contends that three witnesses testified to the same sequence of events, while appellant's version was uncorroborated and frivolous. However, the forcefulness of this argument weakens when one considers that the undisputed evidence was that Rolle had recently beaten appellant and had previously threatened him and other co-workers; and further that the jury was at one point hopelessly deadlocked on a verdict. 5

Our standard for determining whether prosecutorial comment on defendant's silence for substantive or impeachment value is harmless has been somewhat uncertain. In Chapman v. United States, 547 F.2d 1240, 1249-50 (5th Cir.), cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977), we attempted to harmonize our decisions concerning Doyle violations and the harmless error test by placing cases into three distinct categories. 6

Unfortunately, as was noted recently in United States v. Dixon, 593 F.2d 626 (5th Cir. 1979), many cases lie somewhere in between the categories discussed in Chapman. In such situations we must seek refuge in the case by case rule of United States v. Davis, 546 F.2d 583, 594-95 and n.31 (5th Cir.), cert. denied, 431 U.S. 906, 97 S.Ct. 1701, 52 L.Ed.2d 391 (1977). "The decision requires an examination of the facts, the trial context of the error, and the prejudice created thereby as juxtaposed against the strength of the evidence of defendant's guilt." United States v. Meneses-Davila, 580 F.2d 888, 890 (5th Cir. 1978).

We have held that even a single reference on direct examination to defendant's silence carried an intolerably prejudicial impact, where the defendant's exculpatory story was not totally implausible and the government's inculpatory evidence was not overwhelming. United States v. Impson, 531 F.2d 274 (5th Cir. 1976), cert. denied, 434 U.S. 1050, 98 S.Ct. 900, 54 L.Ed.2d 803 (1978).

The facts of the present case are closer to Impson than to United States v. Serrano, 607 F.2d 1145 (5th Cir. 1979), United States v. Dixon, 593 F.2d 626 (5th Cir. 1979), and Chapman v. United States, 547 F.2d 1240 (5th Cir. 1977), where the evidence...

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