Brundage v. United States
| Decision Date | 06 September 1966 |
| Docket Number | No. 8721.,8721. |
| Citation | 365 F.2d 616 |
| Parties | James Gary BRUNDAGE, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
E. Michael Canges, Denver, Colo., for appellant.
Robert E. Long, Littleton, Colo. (Lawrence M. Henry, U. S. Atty., with him on brief), for appellee.
Before MURRAH, Chief Judge, and SETH and HICKEY, Circuit Judges.
This appeal is from a conviction and sentence on a charge of assault with a dangerous weapon in violation of 18 U.S. C. § 113(c). Jurisdiction is conceded because the alleged acts were committed upon lands within the territorial jurisdiction of the United States, i. e. a federal correctional institution.
The first complaint on appeal is that appellant was denied due process of law because the trial court refused to allow counsel to orally voir dire the prospective jurors and more particularly because of the refusal to question the prospective jurors on the subject matter of insanity or mental illness as requested orally and in writing by trial counsel. The contention is that inasmuch as mental capacity to commit the offense charged was a vital issue in the case, counsel should have been permitted to extensively inquire of the prospective jurors concerning their views on insanity as a defense to the charge and their experiences, if any, with mental illness. The trial court's inquiry in that regard is said to be erroneously inadequate.
It is, of course, conceded that under the applicable rule of criminal procedure, the court may itself conduct the examination of prospective jurors provided it permits "the defendant or his attorney and the attorney for the government to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions by the parties or their attorneys as it deems proper." Rule 24 F.R.Crim.P. The court's discretion under this rule will not be disturbed, unless it appears from the record that its voir dire was inadequate to properly test the qualifications and competency of the prospective jurors to sit on trial of the case. See Speak v. United States, 10 Cir., 161 F.2d 562; Brown v. United States, 119 U.S.App. D.C. 203, 338 F.2d 543; Goosman v. A. Duie Pyle, Inc., 4 Cir., 320 F.2d 45; Alverez v. United States, 9 Cir., 282 F.2d 435; United States v. Clancy, 7 Cir., 276 F.2d 617; Butler v. United States, 4 Cir., 191 F.2d 433. Certainly the trial court is not required to propound questions which are argumentative, cumulative or tangental.
In this jurisdiction voir dire is customarily conducted by the trial judge and it is his responsibility to probe the minds of the prospective jurors concerning their precognitions, predilections, experiences and any other matters which may peculiarly bear upon their qualifications and competency to serve fairly and impartially in the particular case. In our case the distinguished trial judge did not fail to perform his full duty in that respect. The voir dire of prospective jurors consumed approximately thirty-five pages of the record in which the court stated the nature of the offense, the presumption of innocence, the burden of proof, the function of the court and jury and then inquired of each prospective juror concerning his knowledge of the case, his experience, if any, with like matters and asked other probing questions designed and having the effect of exploring their minds to determine fitness and qualifications to sit as an impartial juror. The prospective jurors were informed that lack of mental capacity to commit the offense charged had been raised as a defense and that the burden was on the government to prove mental capacity to commit the offense. They were then asked whether any of them had a fixed view point on the subject of mental incapacity and if each and every one of them had an open mind and would listen to the evidence and base their verdict on the law of the case as given to them by the court.
Trial counsel objected to the court's voir dire and requested that he "delve further on...
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