U.S. v. Hasting

• Decision Date: 01 August 1984
• Docket Number: Nos. 80-1224,80-1247,80-1225,80-1246,s. 80-1224
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kelvin HASTING, Gable Gibson, Napolean Stewart, Gregory Williams, and Kevin Wendall Anderson, Defendants-Appellants. , and 80-1398.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1269

739 F.2d 1269

UNITED STATES of America, Plaintiff-Appellee, v. Kelvin HASTING, Gable Gibson, Napolean Stewart, Gregory Williams, and Kevin Wendall Anderson, Defendants-Appellants.

Nos. 80-1224, 80-1225, 80-1246, 80-1247, and 80-1398.

United States Court of Appeals Seventh Circuit.

Argued Feb. 15, 1984.

Decided July 26, 1984.

As Amended Aug. 1, 1984.

John F. De Pue, Washington, D.C., for plaintiff-appellee.

Paul Esposito, Lewis, Overbeck & Furman, Chicago, Ill., William L. Gagen, Belleville, Ill., for defendants-appellants.

Before CUMMINGS, Chief Judge, FLAUM, Circuit Judge, and PARSONS, Senior District Judge. ^*

On Remand From the United States Supreme Court, No. 81-1463

FLAUM, Circuit Judge.

This appeal comes to us in an unusual procedural posture. The defendants were convicted in 1980 of three federal offenses: kidnapping in violation of 18 U.S.C. Sec. 1201(a)(1); transporting women across state lines for immoral purposes in violation of the Mann Act, 18 U.S.C. Sec. 2421; and conspiracy to commit the foregoing offenses in violation of 18 U.S.C. Sec. 371. This court reversed the convictions in 1981 on the basis of the prosecutor's impermissible allusion, during closing argument, to the defendants' failure to deny raping and kidnapping the victims. See United States v. Hastings, 660 F.2d 301 (7th Cir.1981). ¹ The United States Supreme Court reversed, holding that this court erred in failing to apply a harmless error analysis to the prosecutor's misconduct. United States v. Hasting, --- U.S. ----, 103 S.Ct. 1974, 1981, 76 L.Ed.2d 96 (1983). After reviewing the evidentiary record of the case, the Supreme Court determined that the prosecutor's statements were harmless beyond a reasonable doubt. Id. at 1981-82. The Court then remanded the case to this court for consideration of those claims that this court did not address in its prior opinion and that the defendants wished to renew. See id. at 1982.

Shortly after the Supreme Court handed down its decision, all the defendants indicated to this court that they wish to press the review of two issues: the trial court's failure to permit the defendants' voir dire regarding racial prejudice and the trial court's failure to sever the trials of the defendants. In addition, defendants Anderson and Gibson ² raise claims relating to the sufficiency of the evidence, to the rule of lenity, and to the prejudicial effect of the government's closing argument, while defendants Williams and Gibson contend that the victims' emotional outbursts during trial were prejudicial and that the trial court erred in allowing the witnesses to express their testimony in legal conclusions. For the reasons discussed below, we affirm the defendants' convictions.

The facts surrounding the crimes in this case are set forth in both the Supreme Court majority opinion and Justice Stevens's concurrence, and we will recount them only briefly. At approximately 2:00 a.m. on October 11, 1979, three young white women and a white man were riding in a car near East St. Louis, Illinois, when a turquoise Cadillac forced them off the road. The occupants of the Cadillac, five black men later identified as the defendants, forcibly removed the women from the car in which they were riding. Two of the defendants immediately raped one of the women and forced her to perform acts of sodomy. The defendants then put the women into the Cadillac and drove them to St. Louis, Missouri, where the defendants repeatedly raped and sodomized the women. At approximately 6:00 a.m., the women were released, and they contacted the St. Louis police. On the basis of the women's descriptions of their attackers and the locations of the sexual attacks, the police arrested the defendants.

VOIR DIRE

On the first morning of the defendants' trial, the court conducted voir dire of two panels of prospective jurors. Approximately five minutes before the court began the voir dire of the first panel, the defense attorneys handed the court forty-four proposed questions for the prospective jurors. Eighteen of these questions dealt with racial attitudes. The trial court refused to make the requested inquiries regarding race, ³ and it instead asked the group of prospective jurors three questions that were capable of revealing racial bias: one question specifically referred to racial prejudice; one referred to prejudice of any kind; and one referred to the prospective jurors' frame of mind. ⁴

Although these three questions did not produce any response from the first panel of prospective jurors, a number of these prospective jurors already had expressed a belief that they would be unable to remain impartial due to either the nature of the crimes or the publicity surrounding the case. During the voir dire of the second panel, the court's specific reference to racial prejudice produced a response from one woman, who indicated that the race of the participants of the trial would affect her verdict.

The defendants argue that, by asking only three general questions that might reveal racial bias and by posing these questions to the prospective jurors as a group, the trial court failed to provide adequate assurances of the impartiality among jury members and failed to elicit sufficient information upon which counsel could exercise their challenges. The government replies that the trial court's method of conducting voir dire was well within its discretion.

The Supreme Court has indicated that, under its supervisory powers, it would require federal trial courts to make a voir dire inquiry into racial bias in cases involving crimes of interracial violence. In Rosales-Lopez v. United States, 451 U.S. 182, 192, 101 S.Ct. 1629, 1636, 68 L.Ed.2d 22 (1981), a plurality of four justices stated that federal trial courts must ask prospective jurors about racial prejudice "when requested by a defendant accused of a violent crime and when the defendant and the victim are members of different racial or ethnic groups." Three dissenting justices asserted that they would require such an inquiry not only when a case involves interracial violence but also whenever the defendant is a member of a racial minority. See also Ristaino v. Ross, 424 U.S. 589, 597 n. 9, 96 S.Ct. 1017, 1022 n. 9, 47 L.Ed.2d 258 (1976) (in case involving interracial armed robbery, assault, and battery, voir dire questioning by state court on issue of racial prejudice was not constitutionally required, but Supreme Court would have required such questioning of a federal court faced with same circumstances); Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931) (where facts involved interracial murder, denial of request for inquiry into prospective jurors' racial bias was reversible error). The Supreme Court has never addressed under its supervisory powers the precise form of inquiry into racial bias that is necessary. However, it has stated that federal trial courts have broad discretion, subject to "the essential demands of fairness," in determining voir dire questions. Aldridge v. United States, 283 U.S. at 310, 51 S.Ct. at 471. See also Fed.R.Crim.Pro. 24(a). A helpful guideline regarding the practical limits of this discretion is found in Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973), which involved the application of the fourteenth amendment to state courts, rather than the federal supervisory powers at issue here. In Ham, the Court determined that either of two brief, general questions would have been "sufficient to focus the attention of prospective jurors on any racial prejudice they might entertain." Id. at 527, 93 S.Ct. at 850.

Federal circuit courts similarly have acknowledged that trial courts have wide discretion in formulating voir dire questions relating to racial bias. For example, in United States v. Grant, 494 F.2d 120, 122-23 (2d Cir.), cert. denied, 419 U.S. 849, 95 S.Ct. 87, 42 L.Ed.2d 79 (1974), the Second Circuit recognized "the trial judge's salutary control of the scope of voir dire," and it expressed its view that possible racial prejudice of prospective jurors can be explored effectively through a "general query whether any juror is unable to judge the case fairly because of the race, creed or color of the defendant." The court further observed that "the trial judge need not ask every question on this subject which the ingenuity of counsel can devise." Id. at 122. Accord United States v. Johnson, 527 F.2d 1104, 1107 (4th Cir.1975). See also United States v. Padilla, 525 F.2d 308, 309 (9th Cir.1975) (trial court acted within its discretion in asking prospective jurors for "yes" or "no" answer as to existence of racial prejudice); United States v. Robinson, 466 F.2d 780, 782 (7th Cir.1972) (if trial court finds proposed voir dire question regarding racial bias to be "inartfully phrased," it may rewrite it); United States v. Scott, 446 F.2d 509, 510 (9th Cir.1971) (no abuse of discretion found where trial court refused to ask defendant's proposed question about prospective jurors' " 'feelings toward Negroes,' " but nonetheless interrogated prospective jurors upon subject of potential prejudice). In addition, it is within a trial court's discretion to pose questions regarding racial bias to prospective jurors as a group rather than individually. See United States v. Banks, 687 F.2d 967, 974, 976 (7th Cir.1982), cert. denied, 459 U.S. 1212, 103 S.Ct. 1208-09, 75 L.Ed.2d 448 (1983); United States v. Dixon, 596 F.2d 178, 181-82 (7th Cir.1979). See also United States v. Kibler, 667 F.2d 452, 455 (4th Cir.), cert. denied, 456 U.S. 961, 102 S.Ct. 2037, 72 L.Ed.2d 485 (1982) (where race was not a central aspect of the case, trial judge is not required to question prospective jurors individually on the issue of racial prejudice).

This court will not find that a trial court abused its discretion in conducting voir dire where there is "sufficient questioning to produce, in light of the factual situation involved in...