U.S. v. Garza, s. 79-1726

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation664 F.2d 135
Docket NumberNos. 79-1726,s. 79-1726
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Albert GARZA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Howard ZUMBERGE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Lawrence CALDWELL, Defendant-Appellant. to 79-1728.
Decision Date02 December 1981

Patrick Reardon, David L. Joslyn, Conklin & Adler Ltd., Chicago, Ill., for defendants-appellants.

Robert L. Simpkins, Asst. U.S. Atty., East St. Louis, Ill., for plaintiff-appellee.

Before SPRECHER and BAUER, Circuit Judges, and DUMBAULD, Senior District Judge. *

BAUER, Circuit Judge.

Appellants were indicted and convicted on charges stemming from a prison escape incident. On appeal they challenge the trial court's rulings on a number of matters, including several pretrial and post-trial motions. We affirm.

I

Lawrence Caldwell, Albert Garza, and Howard Zumberge were inmates of the federal penitentiary in Marion, Illinois. On February 14, 1979, under cover of thick fog, the trio attempted to escape from the institution by scaling its fences. Caldwell failed and was apprehended atop the inner perimeter fence; Garza and Zumberge succeeded and remained at large for several days. State and federal law enforcement officers finally captured Garza, after a brief gun battle, in a church basement. Zumberge was hiding in the same church but surrendered more peacefully. Zumberge was taken into custody and Garza was hospitalized for a gunshot wound.

All three were indicted on March 28, 1979. At trial, appellants elected to represent themselves pro se, although appointed counsel was available. They were acquitted on three counts and found guilty on the remaining counts.

II

Appellants' initial contentions concern adverse pretrial publicity which they claim prejudiced the jury. Due process, of course, requires that an accused be tried by an impartial jury free from outside influences. Maxwell v. Sheppard, 384 U.S. 333, 362, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966). Impartiality, however, does not mean complete juror ignorance of issues and events. Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). If a juror can put aside his impressions gained from pretrial publicity and render a fair verdict based upon the evidence, the impartiality requirement is satisfied. Dobbert v. Florida, 432 U.S. 282, 302, 97 S.Ct. 2290, 2302, 53 L.Ed.2d 344 (1977); Murphy v. Florida, 421 U.S. 794, 800, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975); Irvin v. Dowd, 366 U.S. at 723, 81 S.Ct. at 1642; United States v. Provenzano, 620 F.2d 985, 995 (3d Cir. 1980), cert. denied, 449 U.S. 899, 101 S.Ct. 267, 66 L.Ed.2d 129 (1980). Where juror exposure to pretrial publicity can be shown, defendants must still demonstrate that actual prejudice resulted. 1 Irvin v. Dowd, 366 U.S. at 723, 81 S.Ct. at 1642; United States v. Thompson, 615 F.2d 329, 333 (5th Cir. 1980).

After conducting our own independent review and evaluation of the trial court's voir dire examination, we perceive no actual prejudice arising from pretrial publicity. Although the record reveals that many potential jurors were familiar with the case, Judge Foreman's careful questioning and close scrutiny filtered out the biased veniremen. 2 Of those selected, only four jurors had read or heard of the case, and none possessed more than passing familiarity with the escape. 3 Under the circumstances, we cannot say the district court abused its discretion by its approach to the pretrial publicity problem.

Reflecting the same concern, appellants sought a change of venue as well as additional peremptory challenges and challenges for cause, all of which were denied. Appellants, of course, claim these denials were erroneous. We disagree. As to the change of venue motion, the governing authority is rule 21(a), Fed.R.Crim.P., which provides, in part, that

(t)he court upon motion of the defendant shall transfer the proceeding as to him to another district ... if the court is satisfied that there exists in the district where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial at any place fixed by law for holding court in that district.

Granting or denying a change of venue motion is within the trial court's discretion. United States v. Lamb, 575 F.2d 1310, 1315 (10th Cir.), cert. denied sub nom. Clary v. United States, 439 U.S. 854, 99 S.Ct. 165, 58 L.Ed.2d 160 (1978). Appellants argue that there was more than a reasonable likelihood that prejudicial publicity would prevent a fair trial, but the record does not support them. Only a few articles appeared during the trial, few jurors had read or heard of the case, and no allegation is made that any jurors were actually influenced by media broadcasts or reports. Thus, a change of venue was properly denied.

Appellants' claims concerning additional juror challenges, predicated on supposed widespread, prejudicial publicity, are equally unfounded. As we have noted, there was some publicity, but it was hardly so inflammatory and prejudicial as to require any remedy beyond the measures taken by Judge Foreman. 4 Appellants contend that jurors Reed, Barham, Parker, and Waldron should have been excused for cause and that it was error to allow them on the jury. We disagree. The record shows that Reed read about the case and hunted in the area where Garza and Zumberge were captured, but could not recall any specifics. Barham, as we have demonstrated elsewhere, 5 only vaguely recollected the escape and, frankly, seemed more interested in the dogs used to track the appellants than in the appellants themselves. Parker merely had served as a juror on an unrelated murder case. Finally, Waldron's husband had been a prison guard in a state facility roughly sixteen years ago. Although from appellants' standpoint such jurors may not have been optimal, their presence did not constitute an abuse of discretion since each indicated that he or she could render an impartial verdict based upon the evidence.

We dispatch appellants' argument regarding additional peremptory challenges with the observation that such challenges are limited partly because they serve as a tactical tool of defense counsel seeking one biased juror almost as often as they serve to promote fair trials. See Jeffers v. United States, 451 F.Supp. 1338, 1353 (N.D.Ind.1978). Here, as the government points out in its brief, there were only 30 veniremen remaining after challenges for cause, barely enough from which to select twelve jurors if each side exercised their eight peremptory challenges. Under these circumstances it was proper for the trial judge to deny additional peremptory challenges.

II

Appellants next question certain evidentiary rulings which they claim prevented them from presenting a defense. At trial, appellants admitted they escaped, or attempted to escape, 6 so the sole issue became whether they were compelled to do so by prison conditions. They hoped to prove their defense of duress or necessity 7 by presenting witnesses who would testify, in effect, that violence between inmate factions, as well as appellants' attempts at negotiations between these factions, endangered appellants' lives, and that inadequate medical treatment was damaging appellant Caldwell's eyesight. In particular, appellants sought to subpoena twelve inmates from various correctional facilities across the country to testify about the threat warring factions within Marion penitentiary posed to appellants. Judge Foreman, however, only allowed appellants to subpoena seven inmates, all housed at Marion. In his opinion, the other five witnesses' testimony would have been cumulative and their presence would have required unnecessary transportation expenses and delay.

We recognize that rule 17(b), Fed.R.Crim.P., requires a court to subpoena witnesses for indigent defendants, but only where "the presence of the witnesses is necessary to an adequate defense." In deciding whether a rule 17(b) subpoena should issue the trial judge has wide discretion. United States v. Micklus, 581 F.2d 612, 616 (7th Cir. 1978); United States v. Greene, 497 F.2d 1068, 1078 (7th Cir. 1974); cert. denied, 420 U.S. 909, 95 S.Ct. 829, 42 L.Ed.2d 839 (1975); United States v. Schultz, 431 F.2d 907, 910 (8th Cir. 1970). We cannot conclude that Judge Foreman's refusal to call every requested inmate witness was an abuse of discretion. The witnesses appellants presented clearly established that appellants had acted as peace negotiators and that their lives, as a result, were endangered. Additional inmate witnesses would have done little to buttress appellants' position. Thus, it was well within the trial court's discretion to consider such testimony cumulative and unnecessary. Judge Foreman was equally justified in refusing to subpoena inmate witnesses to testify about prison medical conditions and appellant Caldwell's health problem. Qualified medical experts had covered the topic thoroughly; more prisoner testimony could add little or nothing, save perhaps delay.

Appellants also challenge the trial judge's exclusion of certain defense evidence which he deemed irrelevant. They sought to introduce testimony concerning two murders that occurred approximately three months before the escape, attempting to link the murders with their fear of harm and resulting compulsion to flee the prison. We believe the evidence was properly excluded. Even if we assume the circumstances surrounding the murders were somehow relevant to appellants' case, such evidence still could be excluded

if its probative value (was) substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Fed.R.Evid. 403. The...

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