U.S. v. Johnson, 80-5174

• Decision Date: 18 August 1981
• Docket Number: No. 80-5174,80-5174
• Parties: UNITED STATES of America, Appellee, v. Allen Ray JOHNSON, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 604

657 F.2d 604

UNITED STATES of America, Appellee, v. Allen Ray JOHNSON, Appellant.

No. 80-5174.

United States Court of Appeals, Fourth Circuit.

Argued June 5, 1981.

Decided Aug. 18, 1981.

Thomas F. Loflin, III, Durham, N. C. (Loflin & Loflin, Durham, N. C., on brief), for appellant.

William Woodward Webb, Raleigh, N. C. (James L. Blackburn, U. S. Atty., Raleigh, N. C., Richard T. Gammon, Laura L. Kranifeld, Third Year Law Students, on brief), for appellee.

Before BUTZNER ^* and HALL, Circuit Judges, and MICHAEL ^**, District Judge.

MICHAEL, District Judge.

While there are eight assignments of error set out in appellant's brief, this case essentially presents for decision three issues. The first of these is the denial of a motion for mistrial by defendant based on the court's "interjections, interruptions, and conduct toward the defendant and his attorneys". The second is an assignment of error contending that the trial court erred in the manner in which it interrogated the jurors and ultimately discharged one of the jurors, replacing that discharged juror with an alternate juror. The third asserted error relates to the charge of the court concerning the matter of the specific intent necessary for a conviction under 18 U.S.C. § 1503.

I.

As to the first issue, a detailed and careful analysis of the transcript reveals that the trial court undertook, on numerous occasions, to expedite the proceedings in this case. There are several instances of adjurations by the trial court to counsel, urging them to move the case along. These comments were applied with a catholic hand, being directed both at counsel for the defendant and at counsel for the government. As examples, objections were made on the part of the government to "leading of this witness". The court sustained the objection and asked counsel to go forward promptly with the case. See Appendix 22a. On other occasions, after the court made a ruling, the defendant's counsel undertook to argue further and was told that he could not argue following the making of the ruling. See Appendix 15a and 16a. Again, the court indicated that defense counsel had made three efforts to get the witness to testify in a particular fashion, and that the court felt that three times was enough, but it permitted the witness to make his answer for the fourth time. The answer was less than productive, consisting of "I don't remember". See Appendix 10a and 11a. Many of the comments as to which complaint is made were had at bench conferences, rather than in the hearing of the jury. See Appendix 46a.

Without going more deeply into the analysis of the evidence in the transcript, it is sufficient to say that the court was confronted with vigorously contending lawyers whose expedition in moving the case forward appears strongly to leave much to be desired. The court did on occasion chide the lawyers for their failures to move the case forward, and did on occasion refuse to permit counsel to go into various matters involving a previous trial, 605 F.2d 729, 4 Cir., which had been affirmed by the Court of Appeals.

Certainly, a fair analysis of the transcript indicates clearly that the efforts of the judge were in the interest of expediting the case, and were within the legitimate bounds of comment by the trial court in the course of the proceedings. As stated in United States v. Cole, 491 F.2d 1276 (4th Cir. 1974) "(T)he judge has the right, and often an obligation, to interrupt the presentations of counsel in order to clarify misunderstandings or otherwise insure that the trial proceeds efficiently and fairly." Here, the court's comments related almost entirely to efforts to avoid repetitions and to move the case along, i.e., efficiently. The comments complained of here are far fewer in number than those complained of in United States v. Ballard, 449 F.2d 782 (4th Cir. 1971), where the court held that the entire record disclosed that the 50-odd instances complained of were "well within the ambit of judicial propriety." See, United States v. Ballard, supra, at 783.

A careful review of the transcript shows that the comments of the court were well within the appropriate bounds of judicial propriety.

II.

Turning to the question of the court's action in removing Juror Bullock and substituting for that juror one of the alternates, the appendix indicates clearly that the trial court undertook to interview separately each juror, to determine the accuracy of a statement which had come to the attention of the court. That statement alleged a comment or comments on the part of one of the jurors which reflected unfavorably on the government's case, the alleged comment having been made in the course of the trial itself. While it is true that the defendant and his counsel were excluded from the interrogation of the jurors, it is equally true that the government and the United States Attorney were likewise excluded from that interrogation of the jurors. While it may well be the better practice for the court, under these circumstances, to have counsel for the parties present in chambers during the interrogation, the court having previously elicited from counsel any questions they might wish to be put to the jurors, the decision in this case to go forward without having counsel present falls within appropriate steps to insure a fair and impartial jury to decide the case. See, United States v. Cameron, 464 F.2d 333, 335-6 (3rd Cir. 1972). The trial court must be afforded wide discretion in handling matters relating to the probity and the integrity of the jury. The court in this case acted promptly and commendably in responding to the allegation that one juror had made disparaging remarks concerning the government's evidence, and concerning the Federal Bureau of Investigation, concluding with a statement to the effect that "the FBI ought to be on trial". Certainly the transcript of the interrogation of the jurors reveals nothing which would substantiate these allegations as to any of the jurors save Juror Bullock, and in his case it must be concluded that the evidence was far from certain. Apparently, only one juror heard the comments attributed to Juror Bullock, though they were asserted to have been said under circumstances where other jurors would reasonably be expected to have heard those comments. The other jurors, however, indicated they had heard no comments of the sort alleged. Nevertheless, the trial court apparently concluded that the one flat assertion of the making of the comment justified removing Juror Bullock, a process much facilitated by the availability of an alternate juror.

While the appendix does not disclose it, the transcript clearly shows that the defendant had lived for a number of years in Dunn, North Carolina, a small town in the general area where the events complained of took place, and that his family was living still in Dunn at the time of this trial. As indicated below, the juror complained of was also from Dunn.

Further, as to appellant's argument that the identity of the juror making these comments was unclear, it is certain that Juror Johnson stated that the juror making the alleged comment was "the man from Dunn Mr. Bullock?". See Appendix 71a. At oral argument, counsel for appellant conceded that there was only one male juror from Dunn. The record adequately indicates that the name of the "man from Dunn" was,...