Holmes v. United States
| Decision Date | 22 November 1960 |
| Docket Number | No. 8084.,8084. |
| Citation | 284 F.2d 716 |
| Parties | Connie George HOLMES and Joe Bedami, Appellants, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Irvine F. Belser, Jr., and Claud N. Sapp, Columbia, S. C., for appellants.
William A. Horger, Asst. U. S. Atty., Columbia, S. C. (N. Welch Morrisette, Jr., U. S. Atty., Columbia, S. C., on brief), for appellee.
Before SOBELOFF, Chief Judge, and SOPER and HAYNSWORTH, Circuit Judges.
These defendants have been twice tried and convicted upon charges of interstate transportation of stolen automobiles. We found it necessary to reverse their first conviction because of error in the application of the Jencks Act.1 We find it necessary to reverse the second conviction because of the improper communication by a court official of prejudicial information to the jury.
Despite the careful instructions they had received, one of the feminine members of the jury, during lunch immediately after submission of the case and just before the jurors commenced their deliberations, inquired of one of the deputy marshals in charge of the jury, or generally of those in her hearing, "I wonder where the defendants are staying?" To this the deputy marshal responded, in effect, that he did not know where Holmes was staying, but he knew that Bedami was staying in the Lexington County jail serving a 6-year sentence.
Inevitably, there were minor variations in the versions of the conversation subsequently recounted by the participants and those who heard it. The deputy marshal said the juror asked him where Holmes was staying and that he replied, "I don't know about Holmes, but I can tell you where Bedami is staying — he is in the Lexington County jail — I take him back and forth every day." In an affidavit, the deputy marshal suggested, and other jurors stated, that the jurors learned specifically of the sentence on a prior conviction, not from the official but from newspaper articles published when the trial was in progress.
If we accept the marshal's version of the incident, it was confirmation out of his own knowledge of what some of the jurors had read in the newspapers. With whatever skepticism these jurors may have read the published report of Bedami's prior conviction, those who heard the marshal's statement were left no room for doubt. It is clear that the deputy marshal improperly communicated information to members of the jury which, alone or in combination with newspaper articles they had read, informed them of the prior conviction.
When, shortly before and during a trial, public news media irresponsibly publish incompetent and prejudicial information, the difficulty of maintenance of fairness in the administration of justice is manifest. That the work of the courts may continue without making jury service unduly burdensome, we are allowed to indulge an assumption that the individual jurors will observe the court's admonition and will not read articles or listen to reports about the subject of the trial. When it affirmatively appears, however, that individual jurors have read newspaper articles containing information, incompetent if offered at the trial, that the defendant had been previously guilty of criminal conduct, the Supreme Court has held that a new trial is mandatory.2
Here there is more than jury misconduct in reading forbidden matter. There was the private communication of the court official to members of the jury, an occurrence which cannot be tolerated if the sanctity of the jury system is to be maintained. When there has been such a communication, a new trial must be granted unless it clearly appears that the subject matter of the communication was harmless and could not have affected the verdict.3
The subject matter of the communication was far from harmless. Nothing had occurred at the trial to make relevant evidence of a prior conviction of Bedami. The judge would not have permitted reference in open court to such a conviction. When the jury was privately informed of that fact4 by the deputy marshal out of the presence of the court and of counsel, there was not so much as opportunity to mitigate its obviously prejudicial effect.
We think this improper communication by a court official to members of the jury required an order granting a new trial.5
Since the matter must be retried, we think justice requires a new trial for Holmes as well as for Bedami. The two were being jointly tried for the transportation of the same vehicles. Holmes took the stand and testified that he was a legitimate dealer, that he received these automobiles on consignment in the regular course of business and without reason to believe they were stolen, and that he openly offered them for inspection by professional auctioneers and prospective purchasers. To that extent his defense was independent of Bedami's. An inference that he knew the vehicles were stolen, however, was largely dependent upon his association and joint activity with Bedami and evidence of Bedami's conduct in Florida where the vehicles were stolen. A finding of guilt was so dependent upon the connection between the two, that collateral information clearly prejudicial to Bedami could hardly have been harmless to Holmes.
The motion for new trial was filed on the sixth day after the judgment. The District Court was of the opinion it was untimely. United States v. Holmes, D.C. E.D.S.C., 183 F.Supp. 361.
Rule 33 of the Rules of Criminal Procedure, 18 U.S.C.A., permits a motion for new trial on the ground of newly discovered evidence within two years after final judgment. A motion for new trial on any other ground must be made within five days after the verdict, or within such further time as may be fixed by the court during the 5-day period.
It is true that newly discovered evidence bearing upon a substantive issue does not require an order of a new trial, unless it is material to the substantive issue and is likely to lead to an acquittal on a new trial. Evidence that a court official on a previous trial had improperly communicated prejudicial information to members of the jury would be entirely irrelevant on a subsequent trial of these defendants. There is no reason, however, to import into the procedural rule the standards for appraisal of a particular kind of newly discovered evidence.
Whether newly discovered evidence tends strongly to establish a defendant's innocence or shows the jury to have been subjected to improper...
To continue reading
Request your trial
-
United States v. Dioguardi
...to read and write English); United States v. De Leon, 462 F.2d 170 (5th Cir. 1972) (juror under indictment); Holmes v. United States, 284 F.2d 716 (4th Cir. 1960) (improper communications to jury); Ford v. United States, 201 F.2d 300 (5th Cir. 1953) (juror convicted of felony); Ryan v. Unit......
-
Tillman v. United States
...369, citing Johnson v. United States, 5 Cir., 1953, 207 F.2d 314, 322; Little v. United States, supra at 295; Holmes v. United States, 4 Cir., 1960, 284 F.2d 716, 97 A.L.R.2d 782; United States v. Dardi, 2 Cir., 1964, 330 F.2d 316, 332. While appellants do not attack the discretion given th......
-
Silverthorne v. United States
...295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); United States v. Milanovich, 303 F.2d 626 (4th Cir. 1962); Holmes v. United States, 284 F.2d 716, 97 A.L.R.2d 782 (4th Cir. 1960); Massicot v. United States, 254 F.2d 58 (5th Cir. 1958). In reviewing the case before us, we think it significan......
-
State v. Carlson
...the communication was harmless and could not have affected the verdict.'" Id. at 207-08, 428 S.E.2d at 12 (quoting Holmes v. United States, 284 F.2d 716, 718 (4th Cir.1960)). Yet, we observed, "The mere fact ... that some conversation occurred between a juror and the court official would no......