U.S. v. Corey, 79-5607

• Decision Date: 12 September 1980
• Docket Number: No. 79-5607,79-5607
• Citation: 625 F.2d 704
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward Harold COREY, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 704

625 F.2d 704

UNITED STATES of America, Plaintiff-Appellee, v. Edward Harold COREY, Defendant-Appellant.

No. 79-5607

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Sept. 12, 1980.

Stanley M. Serwatka, El Paso, Tex., for defendant-appellant.

LeRoy Morgan Jahn, Asst. U. S. Atty., San Antonio, Tex., Jerry M. Tanzy, El Paso, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before AINSWORTH, FAY and RANDALL, Circuit Judges.

PER CURIAM:

Edward Harold Corey appeals from his escape attempt conviction under 18 U.S.C. § 751(a) (1976). ¹ He contends that his sixth amendment right to a fair and impartial jury was violated because the trial judge refused to ask on voir dire certain requested questions dealing with possible credibility choice bias favoring the testimony of law enforcement and other government officials. Corey also claims that the trial court committed reversible error in allowing a prison psychologist to testify as an expert on Corey's mental state at the time of his confession. We find no error in admitting that testimony. Moreover, because we find no error committed in the conduct of voir dire which could have deprived Corey of a fair and impartial jury, his conviction is affirmed.

On the evening of May 10, 1979, appellant Corey hid in the recreation yard of the Federal Correction Institute at El Paso, Texas, until the guard had secured the yard and left. He later claimed that his purpose was to be found in an unauthorized area so that he would be placed in segregation, out of the reach of his gambling debt creditors in the prison population. That asserted purpose was certainly achieved later that evening when Corey began traversing the recreation yard. Guards in three different locations who spotted him fired at him, wounding him three times. Corey was taken into custody and treated for his injuries at a nearby hospital.

While recuperating the next day from surgery performed under general anesthesia, Corey was questioned by F.B.I. Special Agent Byron MacDonald and prison psychologist Dr. William Lucker. Corey testified at trial that he had no recollection of this interview, but Lucker and MacDonald both stated that he had confessed his intent to escape from the prison. An anesthetist testified at trial that on occasion the anesthesia given Corey could induce amnesia. Corey further asserted at trial that he had never intended to escape, but only to commit an infraction which would land him in the comparative safety of a segregation unit.

Emphasizing the crucialness of credibility choice in his case, Corey contends on appeal that the trial court gave inadequate protection to his constitutional right to a fair and impartial jury. He argues that the judge improperly declined to ask on voir dire the substance of three questions he submitted to discern any credibility choice bias held by jurors. Corey's requested questions were the following:

(a) Are there any members of the panel who would tend to believe the testimony of a Government agent or employee over the testimony of a private citizen, solely because he is a government employee or agent?

(b) Are there any members of the panel who would tend to believe the testimony of a Government agent or employee over the testimony of a convicted felon, solely because he is a Government employee or agent?

(c) Are there any members of the panel who would tend to believe the testimony of a Government agent or employee over the testimony of a convicted felon, solely because the person is a convicted felon?

Rather than ask the proposed questions, the judge asked the jury venire more general questions. He asked the venire as a whole whether any of them or their close family members and friends had served or were serving as law enforcement officers. Those who responded affirmatively the court asked individually about possible bias. The judge then asked the venire generally whether any "preconceived bias or notion or prejudice" would hamper their service as fair and impartial fact finders in that case. No one asserted such a bias. Next, the judge asked if any members of the venire or their family members had received any special law enforcement training, or if any were federal government employees. Those who answered affirmatively the judge quizzed individually about possible bias. None conceded any prejudice. Significantly, the judge asked specifically whether any prospective juror held any bias or prejudice towards Corey, emphasizing his status as a convicted felon. From the silent response the judge concluded that no unfair bias existed. The judge then concluded voir dire by asking:

Whether I have asked it or not, do any of you know any reason at all under any circumstances why you could not serve as a fair and impartial juror on this case? You know the nature of the charge against Mr. Corey.

All right, would you be satisfied then if you were the United States Attorney to have your case tried by twelve people in the frame of mind in which you now find yourself?

I gather that you would.

If you were the defendant, Mr. Corey, charged as he finds himself charged, would you be satisfied to have your case tried by twelve people in the frame of mind in which you now find yourself?

All right, I gather that you would.

Apparently satisfied with the impartiality of the venire, the judge asked the panel no more detailed questions about bias and permitted the case to proceed to trial. In this closing charge, the court gave only general instructions for evaluating the testimony of witnesses. ²

Corey now contends that the trial court's efforts did not go far enough to insure impartiality. He concedes that the district court has broad discretion in the conduct of voir dire. See United States v. Delval, 600 F.2d 1098, 1102 (5th Cir. 1979); United States v. Nell, 526 F.2d 1223, 1229 (5th Cir. 1976). He points out, however, that that discretion is "subject to the essential demands of fairness." Aldridge v. United States, 283 U.S. 308, 310, 51 S.Ct. 470, 471, 75 L.Ed. 1054 (1931). The test to determine whether, in the conduct of voir dire, the essential demands of fairness have been met is " 'whether the procedure used for testing impartiality created a reasonable assurance that prejudice would be discovered if present.' " United States v. Nell, 526 F.2d at 1229, quoting United States v. Dellinger, 472 F.2d 340, 367 (7th Cir. 1972), cert. denied, 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706 (1973).

If a judge's interrogation of the jury uncovers an "actual bias," the judge must grant a challenge for cause. United States v. Nell, 526 F.2d at 1229. "Actual bias can come to light during voir dire in two ways: by express admission or by proof of specific facts showing such a close connection to the circumstances at hand that bias must be presumed." Id. Because presumed bias depends entirely on surrounding circumstances, the trial judge must develop the factual circumstances sufficiently to make an informed judgment on the existence of actual bias. Once a party has raised the spectre of potential actual prejudice, specific and direct questioning is necessary to ferret out those jurors who would not be impartial. Broad, vague questions of the venire will not suffice. Id.

Knowing what specific questions to ask is difficult for the judge, who lacks the same grasp attorneys have of the complexities and nuances of a particular case. United States v. Ledee, 549 F.2d 990, 993 (5th Cir.), cert. denied, 434 U.S. 902, 98 S.Ct. 297, 54 L.Ed.2d 188 (1977). This court has previously stressed that voir dire examination not...