Martin v. U.S.

• Decision Date: 10 September 1982
• Docket Number: No. 81-1908,81-1908
• Parties: Favis Clay MARTIN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1235

691 F.2d 1235

Favis Clay MARTIN, Appellant, v. UNITED STATES of America, Appellee.

No. 81-1908.

United States Court of Appeals Eighth Circuit.

Submitted April 12, 1982.

Decided Aug. 4, 1982.

Rehearing and Rehearing En Banc Denied Sept. 10, 1982.

Steven A. Muchnick, Lewis, Rice, Tucker, Allen & Chubb, St. Louis, Mo., for appellant.

Thomas E. Dittmeier, U. S. Atty., Kathianne Knaup, Asst. U. S. Atty., St. Louis, Mo., for appellee.

Before BRIGHT, HENLEY and JOHN R. GIBSON, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Favis Clay Martin appeals his conviction on two counts of sending threatening letters through the mail (18 U.S.C. Sec. 876). Martin urges that the district court erred in failing to grant a mistrial when one of the jurors was found unfit to serve and replaced with an alternate, in denying a motion to suppress statements when Martin had refused to sign the Miranda waiver form, in overruling motions for acquittal because the evidence was ambiguous as to whether the letters were threatening, in giving certain instructions, and in denying motions for continuance and discharge of counsel. We affirm.

Martin in 1970 was convicted of murdering his wife as a result of a custody dispute and received a life sentence. A sister of the deceased wife and her husband adopted the child of the marriage, and Martin's alleged threatening letters were directed to the attorney representing the family, Mark I. Bronson, and the Judge, Gary M. Gaertner. Martin was sentenced to a 5-year term on each count. The sentences are to run concurrently with each other and consecutively with the term Martin is serving in the Texas Department of Corrections for the murder.

I.

After the jury was instructed, the alternate juror was excused and the jury retired at 4:38 p. m. Moments thereafter the district judge ¹ received word of bizarre behavior on the part of one of the jurors, Mr. Burst. A law clerk of one of the judges and an FBI agent reported to the judge that the juror had told several people that he was an assistant bailiff or marshal and had stopped a number of individuals asking for their identification and the nature of their business in the area. The FBI agent reported that the juror had attempted to go into the chambers of one of the other judges, again stating that he was an assistant bailiff or marshal.

The district judge, upon receiving these messages, immediately sent the clerk to direct the jury not to begin deliberating and to hold up on doing anything until further word was given. The clerk was instructed to bring juror Burst to the courtroom. The alternate juror either had not left the courtroom or was in the hallway a few steps from the door and he was asked to return to the courtroom and be seated. At 4:55 p. m. in chambers the district judge conferred with counsel and defendant and made the following statements:

The jury has not deliberated ... the jury could not deliberate and they have not deliberated at this time....

The Court is of the opinion that there has been no deliberations ... so no deliberations have taken place.

A motion for mistrial was made by defendant and denied. The court discharged juror Burst on the ground that he was mentally and physically incapable of serving and substituted the alternate juror. The jury was then ordered to begin their deliberations.

Martin argues that the substitution of the alternate juror violated Federal Rule of Criminal Procedure 24(c), which provides as follows:

... Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties.... An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict.... (Emphasis added.)

The issue is whether in this case the jury had retired to consider its verdict.

Under the particular circumstances presented in this case, we conclude that, although the jury had left the courtroom, because the deliberations had not commenced ² the jury had not retired to consider the verdict, and the substitution of the alternate juror was proper.

Similar circumstances were involved in United States v. Cohen, 530 F.2d 43, 48 (5th Cir. 1976), where a "sleeping juror" was replaced with an alternate. The jury had been kept waiting in the hallway outside the courtroom. The court ruled:

Appellant's interpretation is too formalistic. Although the jury had been ordered to retire, it had not yet done so because the jurors had never begun their deliberations. We find no violation of the rule.

In Metropolitan Paving Co. v. International Union of Operating Engineers, 439 F.2d 300, 304 (10th Cir. 1971), an alternate was substituted "just as the jury prepared to deliberate" when a bailiff heard one juror remark that he did not want to serve on the jury and had fear for his job since he was a union member. The major complaint raised in Metropolitan Paving was whether the district court had cause to replace the juror. This issue is not raised in the case before this court.

A regular juror had a heart attack and was replaced with an alternate two days after deliberations commenced following a four-month-long trial in United States v. Phillips, 664 F.2d 971, 990-96 (5th Cir. 1981). In considering the replacement under the language of Rule 24(c), the court concluded that the primary questions were whether there had been prejudice and whether there was any coercion. In Phillips, the trial court went to elaborate lengths to insure that deliberations commenced anew after replacement of the alternate. In the case before us, with the findings of the district court that deliberations had not commenced, it cannot be said that defendant Martin was in any way prejudiced by replacement of the alternate for the juror found to be mentally and physically incapable of serving. We also consider that "declaration of a mistrial would be improvident if substitution of an alternate juror would permit the trial to proceed to a just verdict." Whitfield v. Warden of Maryland House of Corrections, 486 F.2d 1118 (4th Cir. 1973), cert. denied 419 U.S. 876, 95 S.Ct. 139, 42 L.Ed.2d 116 (1973).

Martin cites a number of cases disapproving substitution of a juror, but these decisions are distinguishable on their facts. In United States v. Lamb, 529 F.2d 1153, 1156 (9th Cir. 1975), the jury had reached a verdict, which the court rejected, before the alternate juror joined the deliberations. The court found impermissible coercion on the alternate juror. United States v. Allison, 481 F.2d 468 (5th Cir. 1973), appeal after remand 487 F.2d 339 (5th Cir. 1973); United States v. Hayutin, 398 F.2d 944 (2d Cir. 1968); United States v. Beasley, 464 F.2d 468 (10th Cir. 1972); United States v. Chatman, 584 F.2d 1358 (4th Cir. 1978); and United States v. Virginia Erection Corp., 335 F.2d 868 (4th Cir. 1964), all involved situations where the alternate jurors were not discharged when the jury retired to deliberate. Convictions were affirmed in Allison and Hayutin when it was determined that the alternates did not participate in or in any way affect the jury's deliberation. However, in Beasley, Chatman and Virginia Erection convictions were reversed because of the alternate juror's presence in the jury room and possible effect on deliberations.

Martin argues that the jury retired to consider its verdict the minute it left the courtroom. As observed in Phillips, supra at 993, relying on Fallen v. United States, 378 U.S. 139, 142, 84 S.Ct. 1689, 1691, 12 L.Ed.2d 760 (1964), the Federal Rules of Criminal Procedure "are not, and were not intended to be, a rigid code to have an inflexible meaning irrespective of the circumstances." Martin would give such an inflexible meaning to the rule, contrary to the provisions of Rule 2, Fed.R.Crim.P., that the rules are intended to provide for just determination of every criminal proceeding and shall be construed to secure simplicity, fairness and the elimination of unjustifiable expense and delay.

Martin relies on Ex Parte Shirley, 39 Ala.App. 634, 106 So.2d 671 (1958), in which the court concluded that the phrase "the jury retires" means "retire[d] to deliberate and reach a verdict." This definition is in accord with the wording of Rule 24(c), "retires to consider its verdict" and gives further weight to our conclusion that retiring means more than simply leaving the courtroom, but requires retirement to deliberate or consider the verdict.

The district court was faced with a difficult decision in this case, but its action in promptly removing a juror of questionable stability and the substitution of the alternate did not violate Rule 24(c). Martin makes no claim that the action presented a constitutional question.

II.

Martin claims the district court erred in denying the motion to suppress his statement to FBI agent Hartung, urging that there was no waiver of his constitutional rights.

Martin made a statement to Hartung in the warden's office at Huntsville, Texas on June 18, 1979. Hartung gave defendant the bureau's "advice of rights" form and asked him to read it. Martin read the first sentence aloud to Hartung, the remainder to himself, and said that he understood it, but refused to sign the waiver of rights form. The interview then proceeded with Martin talking freely and without hesitation or reluctance. He admitted writing the letters and showed Hartung his typewriter. The statement was introduced at trial. A similar procedure was held not to violate the rights guaranteed by Miranda in North Carolina v. Butler, 441 U.S. 369, 376, 99 S.Ct. 1755, 1759, 60 L.Ed.2d 286 (1979), where the court concluded that waiver can be clearly inferred from the actions and words of the person interrogated. See also, Klingler v. United States, 409 F.2d 299, 308 (8th Cir. 1969); United States v. Ellis, 457 F.2d 1204, 1207 (8th Cir. 1972); United...