U.S. v. Rowell, 74-1731

• Decision Date: 21 March 1975
• Docket Number: No. 74-1731,74-1731
• Citation: 512 F.2d 766
• Parties: UNITED STATES of America, Appellee, v. Howard Eugene ROWELL, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 766

512 F.2d 766

UNITED STATES of America, Appellee, v. Howard Eugene ROWELL, Appellant.

No. 74-1731.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 11, 1975.

Decided March 21, 1975.

James L. Crabtree, Millin, Crabtree & Houdek, Kansas City, Mo., for appellant.

Robert G. Ulrich, Asst. U. S. Atty., Kansas City, Mo., for appellee.

Before BRIGHT and STEPHENSON, Circuit Judges, and TALBOT SMITH, ^* Senior District JUdge.

STEPHENSON, Circuit Judge.

This appeal from a jury conviction ¹ on two counts of an indictment charging distribution of heroin asserts (1) insufficiency of the evidence to support a finding of defendant's mental responsibility at the time of the offense, (2) error by the court in interrogating a juror after the trial had commenced, and (3) error in the imposition of sentence. We affirm.

I.

In substance, appellant contends that the government failed to establish beyond a reasonable doubt that he was able to conform his conduct to the requirements of the law in accordance with the test of insanity prescribed in this circuit. United States v. Frazier, 458 F.2d 911, 918 (8th Cir. 1972). He particularly points to the testimony of Dr. Zwerenz who, in response to a hypothetical question opined that at the time of the offense appellant " * * * was suffering from mental disease or defect which did not allow him to conform his conduct to the requirement of the law." The record included testimony and evidence indicating, among other things, that appellant had a long history of drug addition, was suffering from withdrawal symptoms at the time the heroin in question was obtained and distributed, and was able to secure heroin for himself in the process of doing so.

The government in rebuttal offered the testimony of Dr. McKnelly who, in response to a similar hypothetical question, was of the opinion that appellant "could appreciate the nature of his acts and was able to adhere to the right." Dr. McKnelly had seen Dr. Zwerenz, report and suggested they were in agreement as to everything except their conclusions.

Further discussion of the evidence would not be fruitful. Suffice to say a submissible jury issue as to mental competency was created and submitted to the jury under proper instructions. The jury having spoken, we must review the evidence most favorable to the prevailing party. United States v. Dawson, 467 F.2d 668, 673 (8th Cir. 1972). We are satisfied that the verdict has adequate support in the evidence.

II.

At the close of the first day of trial, counsel for the government advised the court that one of the jurors apparently had been convicted of several municipal violations for offenses relating to the use of alcohol. The following day, at the close of the evidence, the prosecutor suggested that the juror in question might not be a competent juror. Appellant's counsel advised the court that he would strenuously object to anything being done without a hearing-that the juror in question was the only black on the jury. After further discussion, appellant's counsel advised the court that he would object to any further action being taken, pointing out that the government had failed to request any voir dire questions and that municipal ordinance violations would not make the juror incompetent to serve.

Ultimately, after the evidence was closed, the trial court decided to hold a hearing for the purpose of determining whether the juror could continue to serve as an impartial juror in the case. ² The hearing was held in chambers by agreement of the parties. The court carefully questioned the juror, who assured the court he had no prejudice against law enforcement officials and would be a fair and impartial juror. The court then announced that it would not be warranted in finding that he would not be an impartial juror and instructed the juror not to discuss the matter with any other jurors. The juror continued his service with the jury. No objection was then made by any of the parties.

The parties are entitled to a trial by an impartial jury. Matters which come to the attention of the trial judge after trial has commenced which may affect impartiality on the part of a juror or jurors command careful consideration. The taint of partiality must be removed. But in doing so, great care must be exercised in order to avoid compounding the problem.

In Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), it appeared that during the trial of the case a juror informed the trial court of an improper statement that had been made to him about the case. The judge informed the prosecuting attorneys. As a result, the Federal Bureau of Investigation contacted the juror and made its report, which was...