Cordero v. United States

• Decision Date: 31 January 1983
• Docket Number: No. 80-594.,80-594.
• Citation: 456 A.2d 837
• Parties: Rowland CORDERO, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

456 A.2d 837

Rowland CORDERO, Appellant, v. UNITED STATES, Appellee.

No. 80-594.

District of Columbia Court of Appeals.

Argued December 2, 1981.

Decided January 31, 1983.

Russell F. Canan, Washington, D.C., for appellant.

Michael D. Hays, Asst. U.S. Atty., Washington, D.C., with whom Charles F.C. Ruff, U.S. Atty. at the time the brief was filed, and John A. Terry, Asst. U.S. Atty. at the time the brief was filed, and Michael W. Farrell and A. Carlos Correa, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before KERN, FERREN and BELSON, Associate Judges.

FERREN, Associate Judge:

The principal question in this case is whether the trial court erroneously refused to raise certain matters during voir dire of the jury panel. We conclude that the trial court abused its discretion by failing either (1) to outline the facts alleged, followed by a specific inquiry as to whether the prospective jurors felt any prejudice toward appellant because of his political views or affiliations, or at least (2) to alert the prospective jurors to the political issues involved and then to inquire, more generally, whether they could be impartial. We therefore reverse appellant's conviction and remand for a new trial.

I.

Appellant was charged with disrupting Congress. D.C.Code 1973, §§ 9-123(b)(4), — 124 (recodified as D.C.Code 1981, §§ 9-112(b)(4), — 113).¹ His counsel proposed 38 voir dire questions, which the trial court rejected, including questions that would have probed the potential jurors' attitudes toward someone who had made a speech denouncing the United States for "planning World War III" and who was a member of Vietnam Veterans Against the War and the Revolutionary Communist Party.

In conducting voir dire, pursuant to Super.Ct.Crim.R. 24, the court said it was following its "regular" procedure. The court told the prospective jurors that appellant was charged with "Disrupting Congress in that he uttered loud language in Senate Gallery No. 8, disturbing the orderly conduct of a session of Congress." The court then asked the prospective jurors: (1) whether any of them had heard or read anything about the incident charged; (2) whether any of them recognized appellant, the attorneys, or the witnesses; (3) whether any of them or any of their close relatives had ever been charged with, the victim of, or witness to a "disturbing the peace type" offense; (4) whether any of them or any of their close relatives had ever done "law enforcement work" or been a member of a "law enforcement agency" in the District of Columbia area; (5) whether any of them would be inclined to give greater or lesser weight to the testimony of a police officer than to the testimony of any other witness; (6) whether any of them had ever served on a grand jury; (7) whether any of them had ever had "legal training"; and (8) whether any of them had "any feeling other than complete neutrality" about the case or knew of any reason why he or she could not "render a fair and impartial verdict based solely on the law and the evidence."

Only two of these questions provoked responses from prospective jurors: five members of the panel answered that they or their relatives had done "law enforcement work" (two in the CIA, two in the Metropolitan Police Department, and one in the National Guard), and three members stated that they had some "legal training." The prospective jurors who had relatives on the police force and those who had received legal training were removed by peremptory challenges.

At trial, the government presented two witnesses. Officer Gilbert Mayo of the Capitol Police testified that on May 2, 1979 he was on duty in the Senate gallery watching the Senate conduct "routine business" when he heard someone in the gallery give a "scream-type yell." Mayo turned and saw that appellant had risen from his seat, was "shouting toward the floor of the Senate" about "the third world war," "revolution," and "the killing of people in Vietnam," and was throwing leaflets into the air. Mayo could not recall appellant's exact words, but he remembered that they were "basically the same" as the written statements in appellant's leaflet. That leaflet, which was necessary, first, to refresh Mayo's recollection, was entered into evidence, and reviewed by the jury, as Government Exhibit 1. It read as follows:

We are supposed to be awed by the spectacle before us. "Our leaders" taking care of "our business." Just another damn lie.

These millionaires are getting ready for World War III. These monstrous animals who tried to bomb the Vietnamese into the stone age, who tortured mercilessly and committed countless atrocities world-wide from Iran to Chile, these profit hungry vampires who walk around in three piece suits and call themselves polite names like statesman, businessmen, and general don't care how many hundreds of millions of people are incinerated.

Their system is driving them to war. They want the slaves here to go fight the slaves in Russia to see which master can have the biggest empire on earth. Bringing back the draft is part of that.

To hell with them. People we got to make it a revoluntionary civil war against them. Follow the leadership of the Revolutionary Communist Party and be determined to make revolution to end this system of misery.

In Vietnam they put guns in our hands and had us kill — but a lot of those guns got turned on the officers. The slaves of this world have but one enemy and that is the capitalists, the oppressors.

Mayo testified that the people around appellant seemed "frightened" and attempted to move away. Mayo stated, over appellant's objection on hearsay grounds, that as he moved to arrest appellant the President pro tem of the Senate pounded the gavel several times and called for the Sergeant at Arms to restore order in the Senate and in the gallery. Mayo arrested appellant and escorted him from the gallery.

Capitol Police Officer John Mitchell, who also was on duty in the Senate gallery at the time, gave testimony corroborating Mayo's account of the incident, including identification of appellant's leaflet.

Appellant's defense was that he lacked the required specific intent to disrupt Congress (see note 1 supra) since he had intended only to speak to the people in the gallery itself, not to the Senators. Appellant testified over government objection that he was a Vietnam veteran and that he had joined the Vietnam Veterans Against the War, the Revolutionary Union, and the Revolutionary Communist Party after his discharge from the Army.² Appellant stated that he had come to Washington a few days before his arrest to participate in the May 1, 1979, International Workers' Day Celebration. He visited the Senate gallery the day before he was arrested and decided that he "wanted to speak to the American people, the people of the gallery, and make a statement about World War III." He prepared a leaflet and returned the next day. Appellant admitted that he "made [his] statement," that he knew the Senate was in session when he did so, and that he "didn't care if the Senators heard."

The jury found appellant guilty of disrupting Congress; the trial court sentenced him to 30 days' imprisonment and fined him $300. The court suspended execution of the sentence and continued the case for 30 days for payment of the fine or, if the fine were not paid, for appellant to serve 30 days in lieu of paying the fine.

II.

Appellant contends that the trial court violated his Sixth Amendment right to trial by an impartial jury by refusing to ask the members of the jury panel whether any of them had ever worked in a prosecutor's office, whether any of them would find it difficult to apply legal rules regarding presumption of innocence, reasonable doubt, and burden of proof, and whether any of them would be prejudiced against appellant because of his political beliefs or affiliations.

A. "The law affords the trial court broad discretion in conducting voir dire examination; absent an abuse of discretion and substantial prejudice to the accused, the trial court will be upheld." Khaalis v. United States, D.C.App., 408 A.2d 313, 335 (1979), cert. denied, 444 U.S. 1092, 100 S.Ct. 1059, 62 L.Ed.2d 781 (1980). The trial court did not abuse its discretion in refusing to ask the jury panel whether any of them had ever worked in a prosecutor's office, for the court covered this question in substance when it asked the prospective jurors whether any of them had done "law enforcement work" or had received "legal training." See United States v. Cockerham, 155 U.S.App.D.C. 97, 476 F.2d 542 (1973) (per curiam); United States v. McDonnell, 573 F.2d 165, 166 (3d Cir.1978) (per curiam) (no error where voir dire questions "address[ed] substantially the same issues raised in those submitted by counsel").

B. Nor did the court abuse its discretion in refusing to ask members of the jury panel whether they would be able to apply the law regarding presumption of innocence, reasonable doubt, and the government's burden of proof. These proposed questions concerned propositions of law. We held in Davis v. United States, D.C.App., 315 A.2d 157, 160 (1974), that a trial court properly declined to allow a voir dire question which "inquired respecting a proposition of law and hence invaded the function of the trial judge." Once jurors are sworn, they are "bound to render a verdict under the law as given by the court," and "[a]ccordingly, it is not necessary to inquire as to whether a juror will refuse to do that which he swears or affirms he will do." United States v. Wooton, 518 F.2d 943, 946 (3d Cir.), cert. denied, 423 U.S. 895, 96 S.Ct. 196, 46 L.Ed.2d 128 (1975); United States v. Price, 577 F.2d 1356 (9th Cir.1978), cert. denied, 439 U.S. 1068, 99 S.Ct. 835, 59 L.Ed.2d 33 (1979).³

C. Appellant's final argument — that the trial court abused its discretion in refusing to ask questions directed at determining whether prospective jurors would be...