U.S. v. Smith

• Decision Date: 08 November 1984
• Docket Number: 83-5817,Nos. 83-5812,s. 83-5812
• Citation: 748 F.2d 1091
• Parties: 17 Fed. R. Evid. Serv. 175 UNITED STATES of America, Plaintiff-Appellee, v. Mira Carolyn SMITH, Lydia Taylor, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1091

748 F.2d 1091

17 Fed. R. Evid. Serv. 175

UNITED STATES of America, Plaintiff-Appellee, v. Mira Carolyn SMITH, Lydia Taylor, Defendants-Appellants.

Nos. 83-5812, 83-5817.

United States Court of Appeals Sixth Circuit.

Argued Aug. 7, 1984.

Decided Nov. 8, 1984.

W. Meredith Clark (argued) (court appointed), Memphis, Tenn., for defendant-appellant in No. 83-5812.

Henry V. Sutton (Lead) (argued), Mark W. Garrett (argued), Memphis, Tenn., for defendant-appellant in No. 83-5817.

W. Hickman Ewing, Jr., U.S. Atty., Robert M. Williams Jr., Alice Howze (argued), Asst. U.S. Attys., Memphis, Tenn., for plaintiff-appellee.

Before EDWARDS and MARTIN, Circuit Judges, and WALINSKI, District Judge. ^*

BOYCE F. MARTIN, Jr., Circuit Judge.

Defendants Mira Carolyn Smith and Lydia Taylor appeal their convictions after a jury found them guilty of violating 18 U.S.C. Secs. 3, 1503 and 1622 and conspiring to violate these substantive provisions. Here, defendants raise several claims of error, the most serious being: The district court erred in refusing to excuse a juror for cause, and the court abused its discretion in severely limiting the cross-examination of a government witness.

Defendants were charged in a four-count indictment alleging the following offenses: accessory after the fact to a bank robbery, obstruction of justice, subornation of perjury, and conspiracy to commit these substantive offenses. On August 9, 1983, a jury found the defendants guilty on all four counts.

The indictment of the defendants arose as a result of a bank robbery committed by Ray Daes and David Allen Smith, the son of defendant Mira Carolyn Smith and brother of defendant Lydia Taylor. David Allen Smith was found guilty of robbing the Raleigh Branch of the First Tennessee Bank in Memphis, Tennessee, a federally insured bank. His conviction was affirmed by this Court without opinion. United States v. Smith, 729 F.2d 1463 (6th Cir.1984). The testimony in the bank robbery trial established that the bank was robbed by a white male, wearing a silver motorcycle helmet and a green jump suit. Shortly after the robbery, the helmet and jumpsuit were found in a culvert located in a neighborhood several blocks from the bank. In the same neighborhood, FBI agents later found Mr. Smith hiding under a wooden deck.

After Mr. Smith was arrested and read his Miranda rights, he was taken into custody and interviewed. Once in custody Mr. Smith told the investigators that he and individual named "Ray" came to Memphis to meet someone who owed Mr. Smith some money. After driving around town, he and Ray finally arrived at a street called "Colonial," where they pulled up behind a car. Thereafter an individual left the car and two other men ran from between two houses and pointed guns at Mr. Smith and Ray. One of the men then forced Mr. Smith to change clothes with him, gave him a bag of money and then told Mr. Smith to run. Mr. Smith then left the scene.

At trial, Mr. Smith was found guilty of the bank robbery despite the testimony of Ray Daes that he and Mr. Smith had never robbed the bank. According to Daes' trial testimony, he and Mr. Smith were in Memphis to meet an unidentified individual. After arriving at the designated rendezvous, an individual came from between two houses wearing a motorcycle helmet and green jumpsuit. The man then ordered Mr. Smith out of the car, told him to remove his shoes and shirt, gave him a "few articles" and instructed Mr. Smith to run or be killed.

One day after his testimony, Daes was arrested by federal officials. Subsequently, Daes admitted that he and Mr. Smith had planned to rob the bank. He also admitted that he had testified falsely at Mr. Smith's trial. Daes told the officials that the defendants in this case, Mira Carolyn Smith and Lydia Taylor, had provided him with the false story and threatened him if he refused to cooperate with defendants' attempt to provide an alibi for Mr. Smith. Daes informed the authorities that the defendants sequestered him in several hotels throughout Arkansas over a four-month period from October 3, 1982 to January 10, 1983, the date of Mr. Smith's bank robbery trial. During this time the defendants forced Daes to memorize a manufactured alibi which would be used at Mr. Smith's trial. After his arrest, Daes was appointed counsel and told his attorney he wished to cooperate with government. Later, defendants were convicted of the charges contained in the indictment due to their efforts to procure the false testimony of Ray Daes. This appeal followed.

Defendants contend that the district court erred in refusing to excuse for cause juror James S. Johnston. On voir dire, juror Johnston indicated that he had read, on the day trial was to begin, a newspaper article about the defendants' impending prosecution and the earlier bank robbery trial of David Allen Smith. Defendants argue that juror Johnston's testimony on voir dire "clearly indicates that Mr. Johnston could only disregard the newspaper account if he were convinced somehow that the previous jury reached the wrong decision." Defendants argue that Mr. Johnston's answers reflect a preconceived opinion regarding their guilt. We disagree.

Once an individual juror indicates on voir dire a prior opinion about an impending criminal trial, the Constitution requires that the juror be seated only if the trial judge determines that the juror can lay aside his opinion and render a verdict based on the evidence presented in court. United States v. Blanton, 719 F.2d 815, 830 (6th Cir.1983) (en banc), cert. denied, --- U.S. ----, 104 S.Ct. 1592, 80 L.Ed.2d 125 (1984). See also Patton v. Yount, --- U.S. ----, ----, 104 S.Ct. 2885, 2892 n. 12, 81 L.Ed.2d 847 (1984); Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961); Holt v. United States, 218 U.S. 245, 248, 31 S.Ct. 2, 4, 54 L.Ed. 1021 (1910); Reynolds v. United States, 8 Otto 145, 98 U.S. 145, 155, 25 L.Ed. 244 (1878). It is not required, nor can it be expected, that a juror be totally ignorant of the facts and issues involved in a criminal prosecution. Reynolds v. United States, 98 U.S. at 155-56; Blanton, 719 F.2d at 830; United States v. Gay, 522 F.2d 429, 432 (6th Cir.1975). See also United States v. Moon, 718 F.2d 1210, 1218 (2d Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 2344, 80 L.Ed.2d 818 (1984). "To hold the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard." Irvin v. Dowd, 366 U.S. at 723, 81 S.Ct. at 1642-43. Rather, the trial judge must ascertain whether the juror is capable of putting aside his earlier views and reach a decision based only on the evidence presented at trial. Once such a determination has been made, it may not be overturned unless manifest error is shown. Reynolds v. United States, 98 U.S. at 156; Blanton, 719 F.2d at 830. Cf. Patton v. Yount, --- U.S. at ----, 104 S.Ct. at 2894 (state trial judge's determination on the impartiality of an individual juror is question of historical fact subject to 28 U.S.C. Sec. 2254(d)'s presumption of correctness). Moreover, the burden is on the defendant to show manifest error. Blanton, 719 F.2d at 830; Goins v. McKeen, 605 F.2d 947, 951 (6th Cir.1979); United States v. Wilson, 715 F.2d 1164, 1168 (7th Cir.1983).

Here, we find no manifest error in the district court's determination on the impartiality of juror Johnston. Admittedly, some of Mr. Johnston's answers reveal some prior knowledge and impressions about the David Allen Smith prosecution. Nevertheless, when viewed as a whole, his declarations support the district court's conclusion that Johnson was capable of putting aside his earlier opinion and reaching a verdict based only on the evidence presented at trial. First, Mr. Johnston stated that he doubted the pretrial media coverage of the case would influence his decision regarding the defendants' guilt or innocence. Further, on several occasions Mr. Johnston affirmatively responded to the questions of the court and attorneys that he was capable of reaching an independent decision despite his exposure to the pretrial media coverage. Mr. Johnston also indicated a clear understanding that he was to disregard his knowledge that David Allen Smith had been found guilty in an earlier trial, and that he was free to determine whether the defendants had indeed been accessories after the fact to a federal bank robbery in Memphis, Tennessee. Mr. Johnston also stated that he understood that the defendants were entitled to a presumption of innocence notwithstanding the earlier conviction of David Allen Smith. These declarations and a review of the entire voir dire of Mr. Johnston reveal substantial support for the district court's determination that Mr. Johnston was capable of putting aside any preconceived notions he might have harbored about the defendants, and was prepared to render a verdict based only on the evidence presented at trial.

Defendants, however, point to one response of Mr. Johnston as illustrative of his inability to disregard his prior knowledge about the case. In response to a question about whether Mr. Johnston was able to disregard his earlier awareness that David Allen Smith had been found guilty by a previous jury, Mr. Johnston replied:

A. I am not sure that I am capable of answering that question. If there were evidence, if evidence were presented in this trial that made me have doubts about the guilt or the innocence of somebody else in another trial, I think that I could if somebody convinced me that maybe they weren't guilty. I don't know, maybe in my own mind I could say, well, I don't believe that they were both guilty of doing it even though I know.

Q. How much?

A. I have no idea. I have no idea.

Defendants assert this reply clearly indicates that Mr. Johnston believed it was up to the...