Coppedge v. United States, 14935.

• Decision Date: 23 June 1959
• Docket Number: No. 14935.,14935.
• Citation: 106 US App. DC 275,272 F.2d 504
• Parties: Mark COPPEDGE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

106 US App. DC 275, 272 F.2d 504 (1959)

Mark COPPEDGE, Appellant, v. UNITED STATES of America, Appellee.

No. 14935.

United States Court of Appeals District of Columbia Circuit.

Argued June 8, 1959.

Decided June 23, 1959.

Mr. James C. McKay, Washington, D. C. (appointed by the District Court), with whom Mr. William H. Greer, Jr., Washington, D. C., was on the brief, for appellant.

Mr. Edward C. O'Connell, Asst. U. S. Atty., with whom Mr. Oliver Gasch, U. S. Atty., and Mr. Carl W. Belcher, Asst. U. S. Atty., were on the brief, for appellee.

Before PRETTYMAN, Chief Judge, and WASHINGTON and DANAHER, Circuit Judges.

PRETTYMAN, Chief Judge.

Appellant Coppedge was indicted on sixteen counts, which involved breaking into a pharmacy and taking some property, including a check-writer and a batch of blank money orders, and thereafter filling in, forging, and cashing some of the money orders. Four other persons were charged in the same indictment; three of them pleaded guilty, and one was acquitted. Coppedge was convicted on ten counts. The point here on appeal revolves about the following circumstances. On the third day of the trial the Government called to the stand one of the four other defendants, one Clarence Thompkins (Tr. 258). In open court, the jury being present, Thompkins refused to take the stand and refused to be sworn. Under repeated questions and at least two mandatory directions from the court, he continued to refuse. The judge ascertained that the witness had a lawyer, and he directed that the lawyer be called. When the lawyer arrived, and again in open court in the presence of the jury, the trial judge directed Thompkins to be sworn and to take the stand. He again repeatedly refused, despite several peremptory directions of the court. The court directed that he be taken to a cell, in order that the court might deal with the matter after the day's adjournment. (Tr. 270-2.) At the end of the day, which was Thursday, December 11th, the trial was recessed until the following Monday. Then, the jury having withdrawn, counsel for Thompkins told the court that the reason Thompkins refused to take the stand was fear. "I sincerely and honestly believe that Clarence Thompkins is deathly afraid of Mark Coppedge. Mark Coppedge was involved in another incident involving his brother, Charles Thompkins, in which Charles Thompkins was unmercifully beat, his teeth knocked out and he was pistol whipped. Clarence Thompkins saw that happen." (Tr. 336.) Upon inquiry by the court Thompkins himself refused to say anything. Counsel for the Government agreed with counsel for the witness. "I agree with Mr. Letterman. I think this man is in a state of great fear. I interviewed him four or five weeks ago in the cellblock in this building and he told me at that time that he was very much afraid of Mark Coppedge. He intimated that his life had been threatened." (Tr. 337-8.) The court inquired of the prosecutor whether there was a reasonable basis for this fear. The prosecutor replied that he thought there was. "I think that Mark Coppedge is a very vicious criminal." (Tr. 338.) The court then found Thompkins guilty of criminal contempt of court but suspended sentence.

On the following day, which was Friday, December 12th, both the Washington Post and the Evening Star published accounts of the trial, including both the events which occurred in the presence of the jury and those which occurred in the jury's absence. These accounts included the statements that Thompkins was deathly afraid of Coppedge and that Coppedge had once pistol-whipped Thompkins' brother, which statements, as we have noted, were made in the courtroom in the absence of the jury. One of the articles carried the statement of the prosecutor that he thought Coppedge was a vicious criminal. One of them said that police records showed Coppedge to be serving a prison term for assault with a deadly weapon on Charles Thompkins. It also quoted the trial judge as saying that it was clear that neither the police nor the District Attorney could guarantee protection for Thompkins, either in jail or out of jail.

On Monday, December 15th, when the trial resumed, counsel for Coppedge presented copies of the newspaper articles and moved for a mistrial. He requested that the court interrogate the jurors, saying, "And if any of the jurors did happen to read this article, I am sure that that juror would not be able to fairly and impartially decide this case." The court said: "I want to say that I am going to deny the motion for mistrial. However, I think I am going to comply with the request of counsel to ask the jury whether they have read the articles." (Tr. 351.) After a short further colloquy the court said: "However, I do not want my submitting this inquiry to the jury to be taken as an indication that if any juror answers in the affirmative, that I am going to grant the motion, because I am going to deny the motion but I will state my reasons later." The court then asked the members of the jury whether any of them had read either of the articles. Four of the regular jurors and one of the alternate jurors raised their hands. Thereupon the following occurred:

"THE COURT: * * * Of course, you understand that these articles must not affect your decision and you must not consider them. When the time comes for you to bring in your verdict you will have to consider only the evidence introduced in court in the light, of course, of the instructions of the Court.

"Now, is there any one of you who has raised your hand who thinks that he cannot do that? Is there any one of you who thinks that he cannot ignore these articles and bring in a fair verdict on the evidence solely?

"(No response.)

"THE COURT: If any of you think that you cannot, please raise your hand.

"(No response.)

"THE COURT: Thank you, ladies and gentlemen.

"Nobody is raising his hand, so I think it is a fair and reasonable inference for the Court to draw that those jurors who have read these articles will not be influenced by them.

"You may retire to the jury room again for a few moments, if you please.

"(The jury withdrew from the courtroom.)"

(Tr. 352-3.) Counsel for Coppedge then said that if he were a juror and had read the articles he did not feel that he could impartially render a decision. The court responded that he was sure counsel could do so and that he (the court) could also do so.

The court then denied the motion for a mistrial, rendering an opinion on the point from the bench. The denial rested upon two grounds. The first was that the court cannot censor or control the press and cannot stop prejudicial articles from being printed. The second reason was that the jury would not be influenced by the articles: "It is only those who have but little contact with jury trials that seem to be obsessed with the notion that the jury is influenced by every zephyr, every little episode, every little incident that happens. That has not been my experience. My experience has been that the average jury confines itself strictly to the merits of the case and is not influenced by extraneous matters or by irrelevant remarks or comments made by anyone, not even counsel." (Tr. 358-9.) The court cited cases in the Second and Tenth Circuits and quoted a comment made by Judge Goodrich of the Third Circuit.

Prior to the foregoing occurrences the court had not admonished the jurors against reading newspaper articles or listening to broadcast accounts relating to the trial. At the beginning of the trial, when the jury was first sworn, the court admonished the members that they must not discuss the case with anyone and that they would please keep an open mind until the trial was finished. (Tr. 9-10.) The court did not mention newspapers or newspaper articles. The trial judge did not further admonish the jury at the end of the first day, or of the second day, or of the third day.

During the oral argument of this matter before this court we requested the United States Attorney to give us in writing references to any admonitions given the jury by the court. In response the United States refers us to pages 10, 84 and 103 of the printed Joint Appendix. Page 10 contains the matter which appears on pages 9 and 10 of the transcript, to which we have referred and which constitutes the remarks of the court to the jury at the time it was sworn. Page 84 of the Joint Appendix contains the matter appearing on pages 352 and 353 of the transcript, to which we have referred and which consists of the remarks to the jury by the court after the five jurors had said they had read the newspaper articles. Joint Appendix 103 contains remarks of the court to the jury at the end of the day on Monday, December 15th, which was after the events we have discussed had occurred. The court there said: "* * * and again let me ask you not to read any newspaper articles...