Ferguson v. Com.
| Decision Date | 17 May 1974 |
| Parties | Howard E. FERGUSON and Teddy Melvin, Appellants, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Rehearing Denied Spet. 13, 1974.
Anthony M. Wilhoit, Public Defender, J. Vincent Aprile, II, Anna H. Isaacs, Asst. Public Defenders, Frankfort, for appellants.
Ed W. Hancock, Atty. Gen., Kenneth A. Howe, Peter C. Macdonald, Asst. Attys. Gen., Frankfort, for appellee.
CULLEN, Commissioner.
On a jury trial, Howard E. Ferguson and Teddy Melvin were found guilty of rape, armed robbery, and taking a motor vehicle without the owner's consent. Judgment in accordance with the verdict imposed the following sentences of confinement: Ten years for the rape; life for the armed robbry; and one year for the motor vehicle theft. Ferguson and Melvin have appealed from the judgment of conviction, asserting numerous grounds of error.
The prosecuting witness, a young married woman, testified that Ferguson and Melvin approached her as she was about to enter her car in a shopping-center parking lot; they forced her into her car and drove it to a motel; at gun point they robbed her of around eight dollars to pay for a room; they took her into the room, tied her to the bed, and each raped her; they then left, taking her car.
The two men testified in their own defense at the trial. They admitted having intercourse with the prosecuting witness but said it was at her invitation, and that she voluntarily gave them the money for the motel room when they told her they had no money. The admitted also that they tied her to the bed and took her car but they said they tied her to the bed after the intercourse and then departed in her car, when she demanded $40 for her favors and threatened to call the police.
The two appellants join in three claims of error, and appellant Ferguson makes two additional claims. We shall consider first the joint claims.
At the outset of the trial the defendants moved jointly that defense counsel be allowed 'to voir dire the jury as individuals and out of the hearing of the other prospective jurors.' In support of the motion counsel tendered a copy of an item from the previous day's local newspaper, which stated that the trial was to commence the next day and mentioned that the defendants originally had pleaded guilty to the rape charge but had withdrawn that plea at the last minute. The trial court overruled that motion, and the appellants claim error in that ruling.
The basis for the motion for separate examination of the prospective jurors, and for the argument of error in the overruling of the motion, is Standard No. 3.4 of the American Bar Association's Standards Relating to Fair Trial and Free Press, subsection (a) of which provides:
'Whenever there is believed to be a significant possibility that individual talesmen will be ineligible to serve be cause of exposure to potentially prejudicial material, the examination of each juror with respect to his exposure shall take place outside the presence of other chosen and prospective jurors.'
In Coppedge v. United States, 106 U.S.App.D.C. 275, 272 F.2d 504, decided in 1959 prior to the promulgation of the Standards, the District of Columbia Circuit indicated its view that separate examination of the jurors should have been conducted when possibly prejudicial newspaper articles appeared during the course of the trial. However, the court did not reverse on that ground specifically, and did not hold that separate examination was a matter of due process.
Two years later the Supreme Court of the United States, in Irvin v . Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751, mentioned in passing the likelihood that a juror will be reluctant to admit prejudice in the presence of his fellow jurors, but the court did not make any holding on the subject of separate examination.
In a 1973 decision the Third Circuit, in United States ex rel. Doggett v. Yeager, 472 F.2d 229, cited and indicated its approval of Standard No. 3.4, and reversed a conviction on the ground that due process had not been observed in determining whether the jurors had been prejudiced by newspaper articles published during the trial. However, in that case practically no real effort had been made by the trial court to examine into the question of prejudice, and the appellate court did not squarely hold that a failure to comply with Standard No. 3.4 would alone and of itself constitute a denial of due process.
It is our opinion that separate examination of jurors or prospective jurors in circumstances of potential prejudice is a matter of procedural policy and is not a requirement of due process. We hold that the granting or denial of the motion for separate examination in the instant case was within the discretion of the trial court, and we find no abuse of that discretion. 1
The appellants' second joint claim of error relates to an allegedly prejudicial question asked of Ferguson by the prosecuting attorney, on cross-examination. Police witnesses had testified that several days after the alleged offenses were committed they noticed the defendants in a car parked in a hospital's parking lot and questioned them as to what they were doing there, but did not arrest them because at that time they were not identified as suspects in the offenses here involved. On cross-examination of Ferguson the prosecuting attorney asked why he and Melvin had come up to the hospital, and when Ferguson replied, 'We are more or...
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