U.S. v. Hickman

• Decision Date: 27 March 1979
• Docket Number: Nos. 78-5148,78-5149,s. 78-5148
• Citation: 592 F.2d 931
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Darryl Gordon HICKMAN and Fred McArthur Head, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 931

592 F.2d 931

UNITED STATES of America, Plaintiff-Appellee, v. Darryl Gordon HICKMAN and Fred McArthur Head, Defendants-Appellants.

Nos. 78-5148, 78-5149.

United States Court of Appeals Sixth Circuit.

Argued Oct. 17, 1978.

Decided Feb. 15, 1979.

As Amended March 27, 1979.

Edwin F. Kagin, Jr., Donald E. Armstrong, Jr., Louisville, Ky., for defendant-appellant in No. 78-5148.

W. Waverley Townes, Nold, Mosley, Clare, Hubbard & Rogers, Louisville, Ky. (Court-appointed), for defendant-appellant in No. 78-5149.

Albert Jones, U. S. Atty., James H. Barr, Asst. U. S. Atty., Louisville, Ky., for plaintiff-appellee.

Before WEICK, ENGEL and KEITH, Circuit Judges.

KEITH, Circuit Judge.

Appellants Darryl Gordon Hickman and Fred McArthur Head were jointly tried in the United States District Court for the Western District of Kentucky. Both defendants were found guilty of being convicted felons in possession of a sawed-off 12 gauge shotgun and of a 32 caliber revolver, in violation of 18 U.S.C.App., § 1202(a)(1). ¹ In addition, appellant Head was found guilty of possession of marijuana for one's own use in violation of 21 U.S.C. § 844(a). The jury was unable to agree on charges against both men on possession of marijuana with intent to distribute. We are sufficiently troubled by the conduct of the district judge to reverse and remand for a new trial.

The facts are relatively straightforward. Acting pursuant to a search warrant; Louisville, Kentucky Police searched defendants' apartment and found Inter alia, a shotgun, a pistol and approximately four pounds of marijuana. ² Shortly thereafter, the two men were arrested as they were returning to the apartment. Appellant Head's conviction of possession of marijuana stemmed from the discovery of a small amount of the drug which he allegedly dropped on the ground just before being arrested. This was a one day trial which presented the principal question of whether the two men were guilty of constructive possession of the weapons and drugs found in the apartment. ³ Simply stated this was a non-complex, routine case.

Although this case is routine, the conduct of the trial judge was not. Appellants charge that the district court's conduct of the trial rendered a fair verdict impossible. Appellant Head, in his brief, asserts that the district court voluntarily interjected itself in the proceedings over 250 times. Our examination of the entire record of the case bears out the truth of this allegation. Although this bare figure, by itself, is not dispositive, it serves to emphasize the serious problems we have concerning the way this trial was handled.

I

The law in this area is as easy to state as it is difficult to apply. The proper role of a federal trial judge was best summarized by the Supreme Court in the following oft-quoted words:

In a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law.

Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 698-99, 77 L.Ed. 1321 (1933). Thus, the mere asking of questions is not at all improper The trial judge in the federal court is more than a mere arbitrator to rule upon objections and to instruct the jury. It is his function to conduct the trial in an orderly way with a view to eliciting the truth and to attaining justice between the parties. It is his duty to see that the issues are not obscured and that the testimony is not misunderstood. He has the right to interrogate witnesses for this purpose.

United States v. Carabbia, 381 F.2d 133, 139 (6th Cir. 1967), Citing Knapp v. Kinsey, 232 F.2d 458, 466 (6th Cir.), Cert. denied, 252 U.S. 892, 77 S.Ct. 131, 1 L.Ed.2d 86 (1956). See Glasser v. United States, 315 U.S. 60, 82-83, 62 S.Ct. 457, 86 L.Ed. 680 (1941).

However, great care must be taken by a judge to "always be calmly judicial, dispassionate and impartial. He should sedulously avoid all appearances of advocacy as to those questions which are ultimately to be submitted to the jury." Frantz v. United States, 62 F.2d 737, 739 (6th Cir. 1933). As good a summary as any of the applicable law was recently stated by Judge Pierce Lively in United States v. Frazier, 584 F.2d 790, 794 (6th Cir. 1978): "The basic requirement is one of impartiality in demeanor as well as in actions."

The problem is that potential prejudice lurks behind every intrusion into a trial made by a presiding judge. The reason for this is that a trial judge's position before a jury is "overpowering." United States v. Hoker, 483 F.2d 359, 368 (5th Cir. 1973). His position makes "his slightest action of great weight with the jury." United States v. Lanham, 416 F.2d 1140, 1144 (5th Cir. 1969), Citing Adler v. United States, 182 F. 464 (5th Cir. 1910). See Quercia v. United States, supra at 470, 53 S.Ct. 525.

For this reason, this Circuit has disapproved of extensive questioning of witnesses by a trial judge. United States v. Ball, 428 F.2d 26, 30, (6th Cir. 1970) ("It is not 'desirable practice' for him to interrupt the proceedings by questioning the witnesses."); United States v. Carabbia, 381 F.2d 133, 139 (6th Cir. 1967), ("We do not look with favor on extensive examination of witnesses by the trial judge in a jury trial."); United States v. Lewis, 338 F.2d 137, 141 (6th Cir. 1964) ("(A) large number of questions asked by the trial judge is not to be commended as a desirable practice . . . .").

As is apparent, determining when a trial judge oversteps is difficult. Numerous factors need be considered. First, the nature of the issues at trial. In a lengthy, complex trial, intervention by the judge is often needed to clarify what is going on. See United States v. Smith, 561 F.2d 8, 13-14 (6th Cir.), Cert. denied, 434 U.S. 958, 98 S.Ct. 487, 54 L.Ed.2d 317 (1977); United States v. Green, 544 F.2d 138, 147 (3d Cir. 1976), Cert. denied, 430 U.S. 910, 97 S.Ct. 1185, 51 L.Ed.2d 588 (1977).

Second, the conduct of counsel. If the attorneys in a case are unprepared or obstreperous, judicial intervention is often called for. If the facts are becoming muddled and neither side is succeeding at attempts to clear them up, the judge performs an important duty by interposing clarificatory comments or questions. See United States v. Frazier, supra at 793; United States v. Burch, 471 F.2d 1314, 1317-18 (6th Cir. 1973).

Third, the conduct of witnesses. It is often impossible for counsel to deal with a difficult witness without judicial intervention. See United States v. Burch, supra. Similarly, a witness' testimony may be unbelievable and counsel may fail to adequately probe. See United States v. Liddy, 166 U.S.App.D.C. 95, 509 F.2d 428, 437-442 (1974), Cert. denied, 420 U.S. 911, 95 S.Ct. 833, 42 L.Ed.2d 842 (1975). More commonly, judicial intervention will operate to clear up inadvertent witness confusion. See United States v. McColgin, 535 F.2d 471, 474-75 (8th Cir. 1975), Cert. denied, 429 U.S. 853, 97 S.Ct. 145, 50 L.Ed.2d 128 (1976).

Assuming that a trial judge has good reason to interject himself into the trial, the manner in which he does so is crucial. Thus, an objective demeanor is important. Outright bias or belittling of counsel is ordinarily reversible error. See United States v. Dellinger, 472 F.2d 340, 385-391 (7th Cir. 1972), Cert. denied, 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706 (1973). However, under some circumstances, misconduct by a trial judge may not mandate reversal. See United States v. Weiss, 491 F.2d 460, 467-68 (2d Cir.), Cert. denied, 419 U.S. 833, 95 S.Ct. 58, 42 L.Ed.2d 59 (1974) (many of judge's comments were out of the presence of the jury, were provoked by the conduct of counsel, and were directed against both sides).

More common is the appearance of partiality which can easily arise if the judge intervenes continually on the side of one of the parties. Our system of criminal jurisprudence hinges upon the advocacy role played by opposing counsel. Although a trial is a quest for the truth, and a federal trial judge is more than a neutral arbiter; interference with the presentations of counsel has the potential of making a mockery of a defendant's right to a fair trial, even in the absence of open hostility. See United States v. Hoker, supra; United States v. Sheldon, 544 F.2d 213, 216-19 (5th Cir. 1976); United States v. Fernandez, 480 F.2d 726, 737-38 (2d Cir. 1973); United States v. Cassiagnol, 420 F.2d 868, 879 (4th Cir.), Cert. denied, 397 U.S. 1044, 90 S.Ct. 1364, 25 L.Ed.2d 654 (1970). Also present is the danger that undue interference with cross examination rights will result if a judge takes over examination by counsel. See United States v. Cassiagnol, supra; Bursten v. United States, 395 F.2d 976, 983 (5th Cir. 1968).

II

The presence of the presiding judge permeates this trial. Our examination of the entire record of this case leads us to conclude that this judge was not impartial and that these convictions cannot stand.

We initially note that the district judge refused to permit either defense counsel to reserve making their opening statement to the jury until after the government had presented its case. Confronted with this refusal, one of the defense counsel attempted to make an on the spot opening statement immediately after the prosecutor finished. He was barely able to state that "I want to remind you just briefly of some of the principles of our system of law . . ." when he was immediately interrupted by the court: "Now, I won't let you do that. I won't let you argue it now. You can argue it later." This initial interruption was all too typical of other interruptions which took place throughout the trial. ⁴

We stress that it is not so important whether the district court was correct in its determination that counsel's opening argument was improper, it is the number of times this happened, and the manner in which it was done, that creates serious doubt as to the fairness of...