U.S. v. Richardson

• Citation: 651 F.2d 1251
• Decision Date: 24 June 1981
• Docket Number: Nos. 80-1479,80-1508,s. 80-1479
• Parties: UNITED STATES of America, Appellee, v. Michael W. RICHARDSON, Appellant. UNITED STATES of America, Appellee, v. Raymond YOUNG, Jr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1251

651 F.2d 1251

UNITED STATES of America, Appellee, v. Michael W. RICHARDSON, Appellant.

UNITED STATES of America, Appellee, v. Raymond YOUNG, Jr., Appellant.

Nos. 80-1479, 80-1508.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 13, 1981.

Decided June 24, 1981.

James M. Reed, II, Kansas City, Mo., for appellant.

William E. Shull, Law Office of William E. Shull, Kansas City, Mo., for appellant.

Before HEANEY, ROSS and ARNOLD, Circuit Judges.

ROSS, Circuit Judge.

Raymond Young and Michael Richardson were convicted of two counts each of armed robbery under 18 U.S.C. §§ 2, 2113. Young was sentenced to terms of 15 years and 5 years to run concurrently. Richardson received two concurrent 15 year sentences. In separate appeals both Young and Richardson allege that the trial court ¹ erred in refusing to grant a mistrial because of prejudicial publicity during the trial. Young also alleges error in that the trial court failed to suppress a photographic identification of him because it was unduly suggestive. In addition, Richardson charges that the trial court erred in permitting the government's witness to testify when, due to prejudicial publicity surrounding the shooting incident in which the witness was involved, her appearance was likely to unduly influence and prejudice the jury. These cases have been consolidated for purposes of appeal. We reverse the convictions for reasons stated below but affirm the trial court's refusal to suppress the photospread identification.

I. Prejudicial Publicity

The joint trial of Young and Richardson began April 28, 1980. On the morning of April 29 defense counsel moved for a mistrial on the basis of prejudicial publicity. The publicity in question included broadcast media and newspaper reports of a shooting incident in which an intended witness in the trial was wounded. It was reported that Consuela Brown, a prospective government witness in the trial who was granted immunity for her testimony, had been shot and wounded outside of her home by unknown assailants in the early morning hours of April 28. The reports went on to state that Brown had received numerous threats because of her expected testimony and that she had been placed under protection by the FBI. It was also specifically stated in the reports that although Ms. Brown had received numerous threats because of her expected testimony, officials were unable to connect the shooting to the trial. The trial judge questioned jurors collectively in open court whether any of them had seen or heard any publicity regarding the trial. Five jurors and one alternate indicated that they had had some exposure to the news stories concerning the trial. The judge then questioned each of these jurors separately in open court, but out of the hearing of the other jurors. Counsel for defendants were given opportunity to question each juror individually. Five of the jurors questioned responded that they could disregard the publicity and deliberate only on the evidence introduced at trial. Juror Dennis Jones responded affirmatively to the trial judge's question regarding his ability to disregard the publicity, but displayed some nervousness and hesitation. He was ultimately excused. ² The trial judge denied the defendants' motion for new trial.

The trial judge has broad discretion in ruling on an issue of prejudice resulting from the exposure of jurors to publicity regarding the trial. Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 1172, 3 L.Ed.2d 1250 (1959); United States v. Williams, 604 F.2d 1102, 1114 (8th Cir. 1979). The trial court's findings on this point may not be set aside unless error is manifest. Mastrian v. McManus, 554 F.2d 813, 818 (8th Cir.), cert. denied, 433 U.S. 913, 97 S.Ct. 2985, 53 L.Ed.2d 1099 (1977).

A number of courts have held that where publicity is determined to be potentially prejudicial, the trial judge is obliged to conduct an inquiry to determine whether jurors have actually been exposed to that publicity and to what extent. In United States v. Herring, 568 F.2d 1099, 1106 (5th Cir. 1978), the Fifth Circuit reversed a conviction because the trial court failed to conduct an inquiry into the possibility of prejudice where newspaper headlines reported death threats against a key prosecution witness and relied instead upon its preliminary instructions to the jury to disregard any mention of the case outside the courtroom. There the appellate court found that the trial court should have examined each juror separately, in the presence of counsel, to determine 1) how much contact the jury members had had with the damaging publicity, and 2) how much prejudice, if any, resulted from that contact. Id. at 1106. The Second Circuit reversed a conviction under similar circumstances in United States v. Lord, 565 F.2d 831, 838 (2d Cir. 1977). There the trial court relied only on repetitive admonitions to members of the jury despite the publication of two newspaper articles detailing a previous stabbing incident involving a government witness and mentioning that one of the defendants had been on the FBI's "ten most wanted" list.

It is clear that in the instant case there existed a sufficient threat of prejudice to require determination of the amount of juror exposure to the publicity. It is equally clear that the trial judge here conducted such an inquiry. He polled the jury as a whole using general references to news stories regarding the case. He questioned each juror individually out of the hearing of the others and admonished each privately and as a group from the bench to consider only evidence introduced at trial.

Despite the careful and deliberate attempt by the trial judge to insure jury impartiality, we believe the "collective impact," United States v. Titsworth, 422 F.Supp. 587, 591 (D.Neb.1976), of prejudicial in-trial publicity and the appearance of the wounded witness testifying from the wheelchair adversely affected the case for the defense, and the trial court abused its discretion in failing to grant a mistrial.

The Supreme Court found similar abuse of discretion in Marshall, supra, where seven jurors were exposed to in-trial publicity which reported that the defendant had two previous felony convictions. Although the trial judge polled the jurors individually and was satisfied with the assurances that each would decide the case only on the evidence introduced at trial, the court found the information involved so inherently prejudicial as to necessitate a new trial. Id. 360 U.S. at 312, 79 S.Ct. at 1172. The Fifth Circuit in United States v. Williams, 568 F.2d 464, 471 (5th Cir. 1978) held that where two jurors had seen a television newscast reporting that the defendant had been convicted by another jury on the same charges, but that a new trial had been ordered because of "erroneous testimony" neither the fact that the two said they could decide the case solely on the evidence adduced in court, nor the court's admonition to disregard everything not heard in court, cured the prejudice. Following a lengthy discussion of pretrial, in-trial, and "overlap" publicity cases, the Williams court stated:

Principles from the pretrial and "overlap" cases must not be haphazardly applied to cases involving only publicity that occurred during the trial. The "during trial" cases though fewer in number, contain greater opportunities for prejudice. For example, information reported during the trial seems far more likely to remain in the mind of a juror exposed to it, and he may be more inclined to seek out this information when he is personally involved in the case. See Jaffe (Trial by Newspaper, 40 N.Y.U.L.Rev. 504 (1965)), supra, at 522. Moreover, exposure of potential jurors to news accounts before trial need not result in an aborted proceeding, since the problem can be cured by a continuance or change of venue. If the exposure occurs during the trial, however, the trial judge must squarely face the question of whether a fair trial is still possible. Consequently, a stricter standard should be employed in during-trial cases than in pre-trial situations.

Id. at 468.

This court in United States v. Williams, 604 F.2d 1102, 1115 (8th Cir. 1979) found no abuse in discretion in a pretrial publicity case but qualified its holding by suggesting that "the exposure of the jury to the same newspaper article during the trial of those individuals named in the article would necessarily present a different question." (Emphasis supplied). There the news article reported that the infant son of a confidential informant in an unrelated narcotics case had been killed and the mother of the child had been wounded in a shooting which police believed to have been in retaliation for the informant's cooperation. We held that the newspaper article was not "inherently prejudicial" to appellant in the case even though an informant in the case had testified that one of the defendants had threatened him and his family. The qualification is support for our holding that news stories involving parties intimately connected with a case are to be more closely scrutinized for potential prejudice.

Finally, in United States v. Titsworth, supra, 422 F.Supp. at 591, the district court granted a defense motion for a new trial on the basis of the "collective impact" of prejudicial in-trial publicity. That impact was produced by newspaper articles and media...