U.S. v. Polk, 76-1282

• Decision Date: 07 March 1977
• Docket Number: No. 76-1282,76-1282
• Citation: U.S. v. Polk, 550 F.2d 1265 (10th Cir. 1977)
• Parties: UNITED STATES of America, Appellee, v. Phillip Bradley POLK, Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1265

550 F.2d 1265

UNITED STATES of America, Appellee, v. Phillip Bradley POLK, Appellant.

No. 76-1282.

United States Court of Appeals Tenth Circuit.

Submitted Jan. 24, 1977.

Decided March 7, 1977.

Hubert H. Bryant, Asst. U. S. Atty., Tulsa, Okl. (Nathan G. Graham, U. S. Atty., Tulsa, Okl., on the brief), for appellee.

Charles Whitman, Tulsa, Okl., for appellant.

Before SETH, BARRETT and DOYLE, Circuit Judges.

BARRETT, Circuit Judge.

Phillip Bradley Polk (Polk) was indicted and convicted by a jury on two counts of transporting and causing to be transported in interstate commerce falsely made and forged securities (money orders) in violation of 18 U.S.C.A. § 2314, and on one count of conspiring to commit the substantive offenses. 18 U.S.C.A. § 371. He was sentenced to concurrent ten-year terms on the two convictions of transporting forged securities, following which he is to serve a four-year term of probation on the conspiracy conviction.

Polk contends that the District Court erred in: (1) denial of his requested jury voir dire examination concerning racial prejudice and bias toward a defendant with a prior criminal conviction; (2) denial of compulsory process and due process of law by reason of the trial judge's comment to Polk's counsel threatening possible perjury charges against Polk; (3) improper admission of evidence concerning Polk's arrest on other charges; (4) refusal of Polk's requested instruction on the elements of conspiracy; (5) denial of full cross-examination of a government witness; and (6) bias and prejudice on the part of the trial judge in sentencing.

Polk, a black person, alleges that the trial court improperly denied his requested voir dire examination of the jury panel concerning possible racial prejudice. He relies on Ristaino v. Ross, 424 U.S. 589, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976), with particular reference to footnote nine which states that had the case arisen in federal court, the court would have required appropriate questions designed to identify racial prejudice if so requested by the defendant.

We believe that the circumstances of Ristaino, supra, distinguish it from the instant case. No crime of violence is involved here, whereas in Ristaino the charges included assault and battery by means of a dangerous weapon, and assault and battery with intent to commit murder. The victim of the alleged crimes was a white person employed as a security guard. Polk was charged with non-violent crimes. Neither the charges, facts or circumstances of this case suggest or convey racial overtones. We recognize that many courts have directed specific voir dire in addition to those directed to the jury panel's ability to serve impartially without regard to race, creed, color, or national origin. We hold, however, that the trial court's general voir dire examination adequately protected Polk and that specific voir dire examination on racial prejudice was not required. The Constitution does not always entitle a defendant to have questions posed during voir dire specifically directed to matters that might prejudice veniremen against him. Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973).

Polk further asserts that it was error for the trial court to refuse his requested voir dire inquiry on possible bias toward a defendant with prior criminal convictions. There is no merit in this contention. The jury was instructed that prior convictions were to be considered solely for impeachment purposes. In addition, the trial court's general voir dire of the jury panel relative to respect and application of the rule of law that all defendants are presumed innocent until proven guilty beyond a reasonable doubt eliminated any question about such bias.

The conduct of voir dire examination is within the sound discretion of the trial court. Ristaino v. Ross, supra; United States v. Hall, 536 F.2d 313 (10th Cir. 1976), U.S. appeal pending. The exercise of the trial court's voir dire discretion will not be disturbed, absent a clear showing of abuse. United States v. Hall, supra; United States v. Hill, 526 F.2d 1019 (10th Cir. 1975), cert. denied, 425 U.S. 940, 96 S.Ct. 1676, 48 L.Ed.2d 182 (1976). Where the trial court's voir dire questions contain the substance of a defendant's proposed inquiries and are sufficient to test a juror's impartiality, they are not clearly abusive of discretion. United States v. Hall, supra. To be sure, the trial court's voir dire questions were not as numerous or as detailed as Polk desired. We hold, however, that they fully and adequately covered the substance of Polk's proposed inquiries and they sufficiently tested the jury panel's impartiality.

At the close of the government's case in chief it was discovered that defense witness Avous McCoy, a/k/a Polk, had not responded to a subpoena. The defense opened with the testimony of Defendant Polk. Subsequently, Ms. McCoy was brought to court by the marshal's office. A conference was then held in the court's chambers. Polk alleges, relying on an affidavit of his counsel, that during this conference the trial judge stated that should the testimony of Ms. McCoy differ from that given by Polk, the court would urge that the United States Attorney's office file perjury charges against Polk. Polk asserts that as a result of this alleged threat, he did not call Ms. McCoy to testify, resulting in a denial of compulsory process and due process of law. We observe that Polk did not lodge an objection or tender an offer of proof at trial.

Absent "plain error" which we have described as "serious prejudicial error" affecting life or liberty requiring corrective action by the appellate court, even though not called to the attention of the trial court, we will not consider matters presented for the first time on appeal. United States v. Guerrero, 517 F.2d 528, (10th Cir. 1975); United States v. Ray, 488 F.2d 15 (10th Cir. 1973); Tapia v. Rodriguez, 446 F.2d 410 (10th Cir. 1971); Fed.R.Crim.Proc. rule 52(a), 18 U.S.C.A. Matters not appearing in the record will not be considered by the court of appeals; presentation of claimed errors to the trial court allows it the opportunity to consider the specific contentions advanced and to take corrective action, if required. Neu v. Grant, 10th Cir., 548 F.2d 281 filed January 12, 1977. Polk did not fulfill any of these requirements. It is a matter of complete speculation whether the trial judge is even now aware of the above allegation. The notification to the trial court that Avous McCoy would not be called to testify became an obvious vehicle for complaint about the comments allegedly made by the trial judge. We deem it significant that no mention of the alleged comments was made on the trial record and no reasons have been advanced on appeal for this failure. This failure may have been motivated by trial tactic. In any event, Polk has made no showing of prejudice. He has not demonstrated how or in what manner the testimony of Ms. McCoy could have placed him in jeopardy. We do not impugn the honesty or integrity of Polk's counsel. However, the singular affidavit filed on appeal does not warrant our consideration. Any such in camera conduct on the part of a trial judge could not be countenanced or condoned if, in fact, it should occur.

Polk contends that the trial court erred by admitting testimony, concerning another arrest and other charges...