U.S. v. Berryhill, 88-1699

• Decision Date: 20 July 1989
• Docket Number: No. 88-1699,88-1699
• Citation: 880 F.2d 275
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tommy BERRYHILL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 275

880 F.2d 275

UNITED STATES of America, Plaintiff-Appellee, v. Tommy BERRYHILL, Defendant-Appellant.

No. 88-1699.

United States Court of Appeals,

Tenth Circuit.

July 20, 1989.

Rehearing Denied Aug. 31, 1989.

Paul G. Hess, Asst. U.S. Atty. (Roger Hilfiger, U.S. Atty. with him, on the brief), Muskogee, Okl., for plaintiff-appellee.

Stephen J. Greubel, Asst. Federal Public Defender, Tulsa, Okl., for defendant-appellant.

Before SEYMOUR, BARRETT and BRORBY, Circuit Judges.

OPINION ON REHEARING

BARRETT, Senior Circuit Judge.

Upon consideration of the petition for rehearing of plaintiff-appellee United States of America requesting that the court revise its opinion with regard to our remand to the district court to correct its reliance on a repealed statute, the petition is granted. The United States argues that our remand in United States v. Berryhill, 872 F.2d 949 (10th Cir.1989), authored by Barrett, Senior Circuit Judge, was based upon a misconception of the repeal date of 18 U.S.C. Sec. 4205(b)(1). We agree. In our order granting rehearing, we directed that that opinion be withdrawn.

Tommy Berryhill (Berryhill) appeals from a judgment and sentence entered after a jury trial and an order of the district court denying his motion for a new trial.

Berryhill was indicted and charged with violations of 18 U.S.C. Sec. 1201, kidnapping, 18 U.S.C. Sec. 924(c)(1), use of a firearm in the commission of a felony, and 18 U.S.C. Sec. 2312, interstate transportation of a stolen motor vehicle relative to acts which occurred between July 7-11, 1987. Prior to trial, Berryhill moved for a change of venue due to frequent pre-trial prejudicial publicity and to suppress his identification based on prejudicially suggestive photographic lineups. Both motions were denied and the case proceeded to trial.

At the close of the first day of trial, one of the jurors related that he knew or thought he knew Mrs. Swearingen, the victim, or her husband. Another juror acknowledged that he remembered reading about the Swearingen kidnapping in a local newspaper. The court, in the presence of counsel and the defendant, conferred with the two jurors in chambers and subsequently excused the juror who had related that he knew or thought he knew the victim. The court's examination of the juror who had read about the kidnapping showed that there was no significant possibility that the juror would be prejudiced thereby. The court properly found that this juror was qualified. See Rule 24, Fed.R.Crim.P.

Following a four-day trial, the jury returned a guilty verdict as charged on all three counts. Thereafter, Berryhill moved for a new trial, alleging that the court erred in: denying his motion for change of venue; failing to conduct an in-depth voir dire of prospective jurors; and in denying his motion for a mistrial at the close of the first day of trial. The court denied this motion via a minute order. Berryhill's request for new counsel was similarly denied. Berryhill was sentenced to 300 years with eligibility for parole after a minimum term of 99 years on Count I, and sentenced to five years on each of Counts II and III, said sentences to run consecutively.

On appeal, Berryhill contends that: (1) we should reverse our United States v. O'Driscoll, 761 F.2d 589 (10th Cir.1985), cert. denied, 475 U.S. 1020, 106 S.Ct. 1207, 89 L.Ed.2d 320 (1986); (2) the district court erred in failing to conduct adequate voir dire; (3) the court erred in denying his motion for a mistrial; and (4) the court erred in failing to grant his motion to suppress in-court identification evidence of himself which was the fruit of out-of-court, overly suggestive and unfair photographic displays.

I.

Berryhill argues that we should reverse our decision in O'Driscoll and correct the illegal sentence given him pursuant to that decision.

In O'Driscoll, we held that, inasmuch as 18 U.S.C. Sec. 1201 provided the penalty for kidnapping to be "imprisonment for any term of years or life," a sentence for a term of 300 years with eligibility for parole after a minimum term of 99 years was legal under Sec. 1201 and 18 U.S.C. Sec. 4205(b)(1). ¹ Berryhill argues that O'Driscoll was incorrect and that his sentence in reliance on O'Driscoll is illegal. Berryhill requests that we reverse our holding in O'Driscoll and order that his sentence be corrected by deleting therefrom the language requiring a minimum 99 years incarceration prior to parole consideration.

In response, the government argues that since the sentence was within Sec. 1201, i.e., an "imprisonment for any term of years or for life," it was legal, and that a legal sentence is not cruel, excessive, or unusual punishment. The government also argues that O'Driscoll is the law of this circuit and that "[a] court of appeals panel may not disregard binding precedent absent an intervening Supreme Court or en banc circuit decision. Flowers v. United States, 764 F.2d 759 (11th Cir.1985). At present, the O'Driscoll case is the law of the Tenth Circuit and should be overruled only by concurrence of the court en banc." (Brief of Appellee at p. 4). We agree. See United States v. Taylor, 828 F.2d 630, 633 (10th Cir.1987) (a panel is not authorized to overrule a prior decision of a court of appeals); Fed.R.App.P. 35, 28 U.S.C.; 10th Cir.R. 35.

Berryhill was sentenced on April 22, 1988, and during sentencing, the court stated:

Tommy Berryhill it is adjudged that on Count 1 you are hereby committed to the custody of the Attorney General of the United States, or his authorized representative, for imprisonment for a term of three hundred years.

It is further ordered that under the provisions of Title 18, United States Code, Section 4205(b)(1), the Court is hereby designating that the defendant shall only become eligible for parole after a minimum term of 99 years incarceration.

(R., Vol. IV, p. 599).

A reviewing court is to grant substantial deference to the discretion of the trial court in sentencing criminals. Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 3009, 77 L.Ed.2d 637 (1983). Although no penalty is per se constitutional, id., successful challenges to the proportionality of particular sentences, outside the context of capital punishment, have been exceedingly rare. Rummel v. Estelle, 445 U.S. 263, 268, 100 S.Ct. 1133, 1136, 63 L.Ed.2d 382 (1980). Thus, if a sentence is imposed within the prescribed statutory limits, the appellate court will generally not regard it as cruel and unusual. United States v. Gourley, 835 F.2d 249, 253 (10th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1741, 100 L.Ed.2d 204 (1988). Berryhill's sentence of imprisonment for a term of three hundred years with eligibility for parole after a minimum term of 99 years incarceration was within the prescribed statutory limits of Secs. 1201 and 4205(b)(1). Furthermore, an identical sentence was upheld in O'Driscoll. Inasmuch as O'Driscoll is the law of the Tenth Circuit, we decline to hold that Berryhill's sentence was illegal.

II.

Berryhill contends that the court erred in failing to adequately voir dire prospective jurors.

Berryhill argues that the traditional method of eliciting information from potential jurors, and the method utilized in this case, i.e., a series of questions requiring a "yes" or "no" answer, gives rise to a perfunctory examination of prospective jurors which does not provide sufficient information to intelligently exercise peremptory challenges. Berryhill argues that it is essential to supplement the court's examination with "at least some attorney questioning--for the intelligent exercise of jury challenges." While acknowledging that his counsel did not request attorney-conducted voir dire, Berryhill nonetheless contends that he was forced to rely on the court's voir dire.

The government responds that the court did not err in its voir dire and that Berryhill's arguments in this regard are frivolous. The government cites to United States v. Hall, 536 F.2d 313, 324 (10th Cir.), cert. denied, 429 U.S. 919, 97 S.Ct. 313, 50 L.Ed.2d 285 (1976) for the rule that it is the practice in this circuit for the court to ask the voir dire questions; that conduct of voir dire is within the discretion of the district court; and that the court's exercise of that discretion will not be disturbed unless there is a clear showing of abuse. The government also argues that, inasmuch as defense counsel did not request attorney conducted voir dire during trial, Berryhill cannot raise this issue for the first time on appeal.

The conduct of voir dire is within the sound discretion of the trial judge, United States v. Sutton, 732 F.2d 1483, 1493 (10th Cir.1984), cert. denied, 469 U.S. 1157, 105 S.Ct. 903, 83 L.Ed.2d 919 (1985), and this discretion will not be disturbed absent a clear showing of abuse. United States v. Lambinus, 747 F.2d 592, 598 (10th Cir.1984), cert. denied, 471 U.S. 1067, 105 S.Ct. 2143, 85 L.Ed.2d 500 (1985). We have carefully reviewed the trial court's voir dire. Nothing in the record before us indicates that the trial court was anything other than meticulous, conscientious and fair in its voir dire. The trial court's voir dire insured that the jurors were competent to serve and that they were impartial. United States v. Hall, supra, at 324.

Furthermore, following its voir dire, the trial court solicited the aid and suggestions of counsel. (R., Vol. II, pp. 30-31). Neither side expressed specific concern vis a vis the adequacy of the voir dire. Id. Under these circumstances, we shall not attribute error to the trial court's voir dire. See United States v. Lawson, 670 F.2d 923, 926 (10th Cir.1982).

III.

Berryhill makes a brief one-half page argument that the trial court erred in failing to grant his motion for a mistrial when, after the first day of trial, it became apparent that the court's inadequate voir dire had led to the impaneling of two jurors who had not earlier disclosed their prior knowledge of the...