U.S. v. Carr, 80-2155
| Decision Date | 14 May 1981 |
| Docket Number | No. 80-2155,80-2155 |
| Citation | 647 F.2d 867 |
| Parties | 8 Fed. R. Evid. Serv. 515 UNITED STATES of America, Appellee, v. Bobby Joe CARR, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Norman Wilkinson, Fort Smith, Ark., for appellant.
Larry R. McCord, U. S. Atty., Neal Kirkpatrick, Asst. U. S. Atty., Fort Smith, Ark., for appellee.
Before HENLEY and ARNOLD, Circuit Judges, and FILIPPINE, District Judge. *
Bobby Joe Carr appeals the judgment of the district court 1 convicting him, after a jury trial, of conspiracy to commit bank robbery, bank robbery without a firearm, and interstate transportation of stolen property. He was sentenced to a five year and two ten year concurrent terms of imprisonment.
On appeal Carr asserts two grounds for reversal. First, he contends that the trial court erred by denying his motion for a mistrial, which was based on an allegation that several members of the jury panel saw him in handcuffs and a waist chain before trial. Appellant also argues that the district court incorrectly denied a motion for new trial that was made as a result of the prosecution's statement during voir dire that his two accomplices had pleaded guilty to the offenses for which he was being tried and would testify for the government.
We affirm the judgment of conviction.
On the first day of trial, officials of the United States marshal's office escorted Carr, who wore handcuffs and a waist chain, from the Sebastian County Detention Center to the federal courthouse in Fort Smith, Arkansas. Upon arriving at the courthouse, Carr and the marshals evidently walked past some members of the jury panel who were standing in a hallway outside the courtroom. Based upon this occurrence Carr requested another jury panel, alleging that prospective jury members who observed him wearing the handcuffs and waist chain would be prejudiced against him. Carr now contends that the trial court erred in denying his motion for a mistrial.
Following its decisions in earlier cases, this court recently stated: "(B) rief and inadvertent exposure of defendants to jurors is not inherently prejudicial; the defendant must bear the burden of affirmatively demonstrating prejudice." United States v. Robinson, 645 F.2d 616, 617 (8th Cir. 1981) (citations omitted). Appellant in the instant case argues that because several prospective jurors "likely" saw him in handcuffs and a waist chain in a courthouse hallway before trial, he was denied a fair trial. We reject this contention and note that a mere unsubstantiated allegation that prospective jury members "likely" saw a defendant in custody does not satisfy a defendant's burden of affirmatively showing that he was prejudiced. E. g., United States v. Wright, 564 F.2d 785, 789 (8th Cir. 1977); Gregory v. United States, 365 F.2d 203, 205 (8th Cir. 1966). Here, Carr did not ask for a hearing on his allegation or offer to prove the prejudicial effect of the pretrial encounter with members of the jury panel. In light of a record that shows nothing more than a possible brief glimpse of the defendant by prospective jurors, this court will not presume any prejudice. Thus, the district court properly denied appellant's motion for a mistrial.
In his second ground for reversal Carr contends that the prosecutor's statement concerning Carr's two accomplices impaired his right to a fair trial because of the statement's early timing, the scant quantity and quality of evidence implicating him in the crimes, and his decision not to testify.
The following statements were made during the voir dire examination:
MR. KIRKPATRICK (Assistant United States Attorney): Now as you heard when the Judge read the indictment to you, the three counts of the indictment there were two other fellows which have been involved in this episode. Their names are John Earl Smith, Junior and Joseph Wayne Cathcart.
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