Anderson v. Warden, Maryland Penitentiary

• Decision Date: 05 October 1982
• Docket Number: 81-6627,Nos. 81-6626,s. 81-6626
• Citation: 696 F.2d 296
• Parties: Roland ANDERSON, # 115181, Appellee, v. WARDEN, MARYLAND PENITENTIARY, Appellant. Roland ANDERSON, # 115181, Appellant, v. WARDEN, MARYLAND PENITENTIARY, Appellee. . Heard En Banc
• Court: U.S. Court of Appeals — Fourth Circuit

Page 296

696 F.2d 296

Roland ANDERSON, # 115181, Appellee, v. WARDEN, MARYLAND PENITENTIARY, Appellant.

Roland ANDERSON, # 115181, Appellant, v. WARDEN, MARYLAND PENITENTIARY, Appellee.

Nos. 81-6626, 81-6627.

United States Court of Appeals, Fourth Circuit.

Heard En Banc Oct. 5, 1982.

Decided Dec. 15, 1982.

Bruce C. Bereano, Annapolis, Md., for appellee/cross-appellant.

Patricia E. McDonald, Asst. Atty. Gen., Baltimore, Md. (Stephen H. Sachs, Atty. Gen. of Md., Baltimore, Md., on brief), for appellant/cross-appellee.

Before WINTER, Chief Judge, RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, ERVIN and CHAPMAN, Circuit Judges, and FIELD, Senior Circuit Judge, sitting en banc.

SPROUSE, Circuit Judge:

Roland Anderson was found guilty of rape, felony murder and burglary by a jury in the State of Maryland and sentenced to life imprisonment by the state court in 1970. The convictions for rape and burglary were later vacated by a state court applying double jeopardy principles barring multiple punishments, but Anderson remains incarcerated on the felony murder conviction. The United States District Court for the District of Maryland in 1981 granted a writ of habeas corpus to Anderson, finding constitutional error committed by the trial judge in the conduct of Anderson's trial, and the State of Maryland appeals. A divided panel of this court reversed the district court and ordered the case remanded for a denial of the writ of habeas corpus. After an en banc hearing, we now affirm the district court. 670 F.2d 1339.

The circumstances of the crime are discussed in the panel opinion and are here only summarized, since it is not the constitutional insufficiency of the evidence that supports the habeas corpus attack, but the egregious conduct of the trial judge.

The victim was a 62-year-old white widow, who lived in the same neighborhood in Annapolis, Maryland, as Anderson. Anderson, at the time of the crime, was a fifteen-year-old black who had reached the seventh grade.

At trial, the state presented strong circumstantial evidence pointing to Anderson as the perpetrator of the crimes, and also a written confession signed by Anderson. Anderson disputed the conclusiveness of the circumstantial evidence, and disavowed the confession; but an alibi comprised practically his entire defense, and if believed would have made it highly unlikely that Anderson had committed the crime. The alibi was presented by Anderson's testimony, and by the testimony of two of Anderson's friends, Phyllis Cook and Clinton Roberts. The gist of the alibi was that Anderson had been visiting Phyllis Cook's house, approximately 10 miles away from the scene of the murder, during the time in which the crime occurred.

During cross-examination of Cook and Roberts, the state's attorney asked both witnesses if they were aware of the penalty of perjury. The trial court instructed Roberts in the presence of the jury that the penalty was 10 years' imprisonment, and that Roberts should bear that in mind in answering questions.

Immediately following the testimony of Cook and Roberts, it appears that the state's attorney approached the bench and the trial judge asked whether the state's attorney wanted witness Roberts held; the state's attorney replied in the affirmative and the sheriff was directed to take Roberts into custody. While the record is unclear, it seems likely that the jury was present in the courtroom during this exchange and possibly saw Roberts (and Cook) taken into custody by the sheriff.

Cook and Roberts testified in post-trial proceedings that following Roberts' cross-examination they were taken from the courtroom and detained elsewhere in the courthouse. Cook testified that a person who she believed to be a bailiff detained her in a small room, accused her of lying, and threatened her with a ten-year jail sentence for perjury. Roberts testified that a policeman took him from the courtroom to a small room with bars, where someone came and talked to him about perjury. The two witnesses were then brought to the judge's chambers and were "given quite a lecture" by the trial judge, who was "upset," concerning the falsity of their testimony. The witnesses then returned to the courtroom and testified a second time. Their response to the "lecture" is not indicated in either the original trial transcript or the record of the habeas corpus proceedings. The defendant was not present in chambers; but the defendant's attorney and the state's attorney were there. The proceedings were not recorded.

Following the conference in chambers, the court reconvened, and the judge addressed the jury as follows:

Mr. Foreman, ladies and gentlemen of the jury, at the conclusion of this case two of the witnesses who testified have indicated to the Court that they told an untruth in their testimony and desire an opportunity to correct that before you ladies and gentlemen before this case concludes. As a matter of law, the Court must afford a witness an opportunity to purge himself or herself of perjury. For that purpose we are recalling these two witnesses to the stand to give them an opportunity to revise their stories to what they are now saying is the correct testimony.

As Cook prepared to testify, the trial judge told her, in the presence of the jury:

You have indicated to the Court that a portion of the testimony that you previously gave under oath in this case was false. The Court now affords you an opportunity to correct that testimony by telling the truth and to purge yourself of the perjury you have committed. This is the last chance you will be given in this trial to tell the truth.

To Roberts, as he commenced his testimony, the trial judge said:

At the conclusion of the testimony in this case you indicated to the Court that some portions of the testimony you had given before this jury were false. You asked the Court for an opportunity to purge yourself of this crime by being afforded an opportunity to tell the truth to the jury. This is your opportunity to tell the truth. It is the last one you are going to get in this trial.... You better make good use of it.

The subsequent testimony of Cook and Roberts varied from their original testimony and considerably weakened the alibi.

The trial court's conduct invaded at least two areas of protection to which Anderson was entitled under the Constitution--his sixth amendment right to call witnesses in his behalf, and to the effective assistance of counsel; and his fourteenth amendment right to a fair trial.

The judge openly and successfully pressed defendant's two key witnesses to change their testimony. This blatantly interfered with Anderson's sixth amendment right to freely present the testimony of the two alibi witnesses. See Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972); Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). Nor can we ignore the effect of the court's forcefully expressed opinion on defendant's counsel. When a trial judge's comments are as emphatic, and as one-sided as in this trial, not only is there a strong possibility that the witnesses might be intimidated, but also that defense counsel's freedom of action might be stifled. The possibility that the effectiveness of Anderson's assistance of counsel was prejudicially reduced is demonstrated by counsel's failure to object to Anderson's absence while the judge lectured the witnesses in chambers; and by counsel's failure to object and request a mistrial after the judge's improper remarks before the jury.

Anderson had a fourteenth amendment due process right to a fair trial, which minimally means a fair and impartial judge and jury. This right was violated. The trial judge's remarks clearly indicated his disbelief of the witnesses' first testimony and unquestionably influenced the jury's appraisal of their credibility. The jury, having been advised directly that Cook and Roberts had lied and having heard the judge's strong language addressed to the witnesses, could have only come to one conclusion--that the initial testimony of the witnesses was false and contrived to save Anderson.

Rules governing comments of trial judges during criminal trials do not by themselves determine the due process parameters of fairness. When the fairness of such comments is in issue, however, the doctrine expressed by those rules is illuminating.

Although there is no Maryland statutory provision regarding the freedom of a state trial judge to comment on the evidence, it is well established that the trial judge should endeavor to maintain an impartial attitude, refrain from unnecessary comment and avoid singling out the testimony of any particular witness for comment. Western Maryland Dairy Corp. v. Brown, 169 Md. 257, 181 A. 468 (1935). Federal trial judges usually are more freely empowered than state judges to comment on the evidence, but they also must take special care to maintain an appearance of impartiality. Quercia v. United States, 289 U.S. 466, 53 S.Ct. 698, 77 L.Ed. 1321 (1933). The purpose of judicial comment is to assist the jury in arriving at a just conclusion; therefore, the judge's comments must be neutral and not be given so as to intimidate the witnesses or otherwise interfere with the ascertainment of truth.

"It was for the jury to determine which of the witness' stories would be given credence, or indeed whether the witness would be believed at all. The comments by the trial judge clearly infringed upon the jury's credibility determining process and appellant was thereby deprived of a fair trial." United States v. Bates, 468 F.2d 1252, 1255 (5th Cir.1972). See United States v. Reed, 414 F.2d 435, 442, (Simpson, J., dissenting), rev'd en banc, 421 F.2d 190 (5th Cir.1969).

Maryland acknowledges in its brief that the trial judge's remarks were erroneous, and in argument conceded that the error was of constitutional dimension. The only issue therefore is whether the error was harmless....