U.S. v. Thompson
| Citation | 615 F.2d 329 |
| Decision Date | 10 April 1980 |
| Docket Number | No. 79-5590,79-5590 |
| Parties | 5 Fed. R. Evid. Serv. 1225 UNITED STATES of America, Plaintiff-Appellee, v. Charlie Will THOMPSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Tom Radney, Alexander City, Ala., for defendant-appellant.
Barry E. Teague, U.S. Atty., Kent B. Brunson, Asst. U.S. Atty., Montgomery, Ala., for plaintiff-appellee.
Appeal from the United States District Court for the Middle District of Alabama.
Before GEE, FAY and VANCE, Circuit Judges.
A federal jury in the Middle District of Alabama convicted Charlie Will Thompson of conspiring to violate and violating election laws in a federal election, by acts made unlawful under 18 U.S.C. § 371 (1976) and 42 U.S.C. § 1973i(c) (1976). On appeal Thompson contends that the trial court, by dismissing a government witness and instructing the jury to disregard her surprise adverse testimony, usurped the jury's function and deprived him of his constitutional right to cross-examine the witness. Thompson further asserts that unfair prejudice sprang from pervasive pretrial publicity and from admission of evidence suggesting appellant's transgression of his county's liquor laws. Finding that the trial court erred in dismissing the government's witness and excluding her testimony, we reverse appellant's conviction on the count to which the witness's testimony appertained. As to the remaining counts, we affirm.
Appellant Thompson, incumbent sheriff of Randolph County, Alabama, faced a close runoff election for office in September, 1978. He won the election but lost the office when the Federal Bureau of Investigation uncovered evidence leading to his indictment for conspiring to buy and buying votes in a federal 1 election, and for aiding and abetting others to do the same for him. Leading to Thompson's arrest and indictment were certain voters' Request for Assistance forms labeled "sold vote." Eventually, many voters admitted that Thompson's campaign workers not only paid cash for votes for Thompson but in several instances even accompanied voters into the booth to insure the voters' compliance, pursuant to false voter assistance request affidavits. Especially damaging to Thompson's case were statements by Robert L. Brown, Jr., one of Thompson's campaign workers charged with election law violations. As part of a negotiated plea agreement, Brown admitted that Thompson gave him both cash and liquor with which to buy votes.
Brown reached the plea agreement with the government about two weeks before trial began. Apparently deeming the agreement a significant step in the case, the United States Attorney called a local television station to release the news of Brown's change in plea. At his request, a reporter came to his office and filmed a brief interview. In the news clip released that night the United States Attorney repeated the substance of Brown's admissions and his implication of Thompson.
When trial began, the United States Attorney called Brown and several other witnesses who had previously told the grand jury that Thompson's campaign workers had tried, with varying measures of success, to buy their votes. To the prosecutor's chagrin, however, one witness deviated from her grand jury testimony, omitting any reference to cash offers for her vote. To refresh her memory, the prosecutor read parts of her recorded prior statements to her, outside the jury's presence. Eventually she acknowledged having admitted to the grand jury that she took $5.00 for her vote. When the jury returned, however, the witness denied ever having taken money for her vote. Confronted with this contradiction, the trial judge interrupted the prosecutor's questioning and initiated the following exchange:
THE COURT: This Court finds this witness unworthy of belief. I direct the jury not to consider anything she has said as having any bearing on the case and direct the United States Attorney to hold her for perjury. The witness is dismissed from this proceeding.
MR. TEAGUE (United States Attorney): Your Honor, may I ask her one further question?
Let me make it very plain to this jury that nothing this witness has said should be considered either in favor of or against either party. Just disregard her testimony and all of the questions that have been asked her. Do not consider any part of it.
MR. HAMNER (Defense Counsel): Excuse me just a moment for a motion.
I will say this, I will let your side call this witness for any purpose you see fit to call her, but I find her testimony so far as completely unworthy of belief.
Although contradictory testimony such as that confronting the trial court here must surely provoke judicial indignation, case law precedent and constitutional precepts forbid judicial interference with the jury's duty to resolve credibility issues. The United States Supreme Court forbade judicial determination of credibility of a defendant-witness many years ago, in Quercia v. United States, 289 U.S. 466, 53 S.Ct. 698, 77 L.Ed. 1321 (1933). Moreover, in parallel cases not cited to us by either party, this court has held that to instruct the jury to accord or deny a witness credibility is to deprive the defendant of a fair trial.
In Stevens v. United States, 306 F.2d 834 (5th Cir. 1962), a witness called by the government gave testimony contradicted by his prior written statements. Claiming surprise, the prosecutor obtained permission to cross-examine the witness. After a confusing colloquy between the prosecutor and the witness, the trial court intervened and asked the witness several questions. Apparently unsatisfied with the results of his inquiry, the judge cut off further testimony, dismissed the witness, and stated for the record that he would not believe the witness on oath. 2 On appeal, the Stevens court reversed the defendant's conviction and remanded his case for retrial, holding that:
A comment by the judge that a witness is not to be believed is prejudicial error unless instructions are given which make it clear that the court's observation is not binding on the jury. In the case at bar the court not only failed to give such an instruction but gave the impression that the witness' testimony could not be considered. In its charge the court repeated its opinion as to the credibility of the witness and referred to his testimony as "misconduct." The question of credibility was taken from the jury. Although the error in the charge may not have been properly preserved by the appellant's counsel, it is such that we think it requires our consideration under the plain error rule and a reversal for a new trial.
Id. at 838. Even more compelling than the vigorous expression of judicial opinion in Stevens is the judge's actual instruction in the present case that the jury give the witness no credence.
In United States v. Bates, 468 F.2d 1252 (5th Cir. 1972), a witness gave testimony contrary to his prior written statements to investigators. After a lunch recess and conversation with the prosecutor and trial judge, the witness resumed the stand that afternoon and recanted the testimony he had given that morning. Immediately the trial judge instructed the marshal to arrest the witness for the perjury committed that morning. On appeal the defendant's conviction was reversed and his case remanded because the trial judge had usurped the jury's function of credibility determination, unconstitutionally depriving the defendant of a fair trial. Held insufficient to cure the error was the court's instruction that the jurors were the sole judges of witness credibility. The remarkably similar judicial reaction in the case now before us merits similar remedy. See also United States v. Blevins, 555 F.2d 1236, 1240-41 (5th Cir. 1977), cert. denied, 434 U.S. 1016, 98 S.Ct. 733, 54 L.Ed.2d...
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