U.S. v. Slone

• Decision Date: 16 November 1987
• Docket Number: No. 87-5299,87-5299
• Citation: 833 F.2d 595
• Parties: 24 Fed. R. Evid. Serv. 339 UNITED STATES of America, Plaintiff-Appellee, v. Berton SLONE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 595

833 F.2d 595

24 Fed. R. Evid. Serv. 339

UNITED STATES of America, Plaintiff-Appellee, v. Berton SLONE, Defendant-Appellant.

No. 87-5299.

United States Court of Appeals Sixth Circuit.

Argued Sept. 28, 1987.

Decided Nov. 16, 1987.

Garis L. Pruitt (argued), C. David Mussetter, Catlettsburg, Ky., for defendant-appellant.

Louis DeFalaise, U.S. Atty., Charles Dause (argued), Lexington, Ky., for plaintiff-appellee.

Before MARTIN and NELSON, Circuit Judges, and CONTIE, Senior Circuit Judge.

CONTIE, Senior Circuit Judge.

Burton Slone appeals from his conviction on six counts of drug and alcohol related charges. For the following reasons, we affirm the district court's judgment.

I.

On October 30, 1986, the federal grand jury for the Eastern District of Kentucky in Ashland indicted Berton Slone and co-defendant Joseph Cox. The indictment returned and filed charged each defendant with three counts of conspiracy relating to, and cultivating marijuana and three counts of conspiracy relating to, and maintaining an illegal stilling apparatus.

Slone and Cox each pled not guilty to all counts against him on November 24, 1986, and trial was set for January 5, 1987. On the trial date, Cox was rearraigned. The district court granted Cox's motion to change his plea to guilty to counts two and four and not guilty to counts one, three, five, and six.

The case against Slone went to jury trial on January 5, 1987, as scheduled. The trial lasted less than two full days. Upon completion of the trial, the jury returned a verdict of guilty on all six counts.

The district court sentenced Slone on March 2, 1987, to four years each on counts one, two, and three; imprisonment on counts two and three to be served concurrent with the sentence on count one and with each other. The district court also sentenced Slone to four years each on counts four, five, and six; imprisonment on counts five and six to be served concurrent with the sentence in count four and concurrent with each other, but consecutive to the sentence imposed on count one.

Slone filed this timely appeal.

Appellant assigns error to two aspects of the district court's handling of his trial. First, during the course of the proceedings, the trial judge addressed questions and comments to witnesses Edgar Waugh, Gary Garvin, Jack Scott, Cox and appellant himself. The specific questions and comments at issue will be referred to in this opinion as needed. Second, during the course of the proceedings, Mike Spreger, a witness for the prosecution, read excerpts from appellant's grand jury testimony over his objection.

This court must determine whether the trial judge committed plain error by interjecting himself into the proceedings to the extent that he created an atmosphere in which it was impossible for appellant to receive a fair trial. This court must also determine whether the district court abused its discretion by admitting into evidence the prosecution's witness' reading of exerpts from appellant's grand jury testimony.

II.

In reviewing this conviction, we may not reverse the jury's verdict if it is supported by substantial evidence. United States v. Chandler, 752 F.2d 1148, 1151 (6th Cir.1985). Further, this court must construe the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Green, 548 F.2d 1261, 1266 (6th Cir.1977); Chandler, 752 F.2d at 1151.

A.

The presiding judge should conduct a trial in an orderly way with a view to eliciting the truth and to attaining justice between the parties. He must see that the issues are not obscured and that the testimony is not misunderstood. The trial court has the right to interrogate witnesses for this purpose. United States v. Carabbia, 381 F.2d 133, 139 (6th Cir.) (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)), cert. denied, 389 U.S. 1007, 88 S.Ct. 564, 19 L.Ed.2d 602 (1967); United States v. Hickman, 592 F.2d 931, 933 (6th Cir.1979). See Glasser, 315 U.S. at 82-83, 62 S.Ct. at 470.

The presiding judge, however, must be careful 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.' " Hickman, 592 F.2d at 933 (quoting Frantz v. United States, 62 F.2d 737, 739 (6th Cir.1933)). " 'The basic requirement is one of impartiality in demeanor as well as in actions.' " Hickman, 592 F.2d at 933 (quoting United States v. Frazier, 584 F.2d 790, 794 (6th Cir.1978)).

In Hickman, this circuit noted that while potential prejudice lurks behind every intrusion a presiding judge makes into a trial, determining when a trial judge oversteps his bounds remains difficult. Hickman, 592 F.2d at 933. Hickman identified three factors which determine whether a trial judge has good reason to interject himself into the trial. First, in a lengthy, complex trial, judicial intervention is often necessary for clarification. Id. (citing 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) and 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, if the attorneys in a case are unprepared or obstreperous or if the facts are becoming muddled and neither side is succeeding at attempts to clear them up, judicial intervention may be necessary for clarification. Hickman, 592 F.2d at 933 (citing Frazier, 584 F.2d at 793 and United States v. Burch, 471 F.2d 1314, 1317-18 (6th Cir.1973)). Third, if a witness is difficult, if a witness' testimony is unbelievable and counsel fails to adequately probe, or if the witness becomes inadvertently confused, judicial intervention may be needed. Hickman, 592 F.2d at 933 (citing Burch, 471 F.2d at 1317-18; United States v. Liddy, 509 F.2d 428, 437-42 (1974), cert. denied, 420 U.S. 911, 95 S.Ct. 833, 42 L.Ed.2d 842 (1975); and 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)).

In addition to the requirement that a presiding judge have good reason to interject himself into a trial, Hickman requires that the trial judge conduct himself in an appropriate manner. Hickman notes the importance of an objective demeanor. "Outright bias or belittling of counsel is ordinarily reversible error.... However, under some circumstances, misconduct by a trial judge may not mandate reversal." Hickman, 592 F.2d at 934.

Interference with the presentations of counsel potentially makes a mockery of a defendant's right to a fair trial, even in the absence of open hostility. Id. (citing United States v. Hoker, 483 F.2d 359 (5th Cir.1973); 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, interference with cross examination rights will result when a judge takes over examination by counsel. Hickman, 592 F.2d at 934 (citing Cassiagnol, 420 F.2d at 879 and Bursten v. United States, 395 F.2d 976, 983 (5th Cir.1978)).

In the instant case, appellant argues that the trial judge interjected himself into the record and took over the examination of witnesses to the extent that appellant was denied his sixth amendment right to a fair and impartial trial, and was denied his fifth amendment right to protection of liberty through due process. Appellant failed, however, to object to any of the trial judge's questions or comments. In Hickman, this court noted the dilemma caused by requiring the defense counsel to object to the presiding judge's interruptions:

Counsel for defendant in a criminal case, is indeed in a difficult and hazardous predicament in finding it necessary to make frequent objections in the presence of a jury to questions propounded by the trial judge. The jury is almost certain to get the idea that the judge is on the side of the Government.

Hickman, 592 F.2d at 936 (quoting United States v. Hill, 332 F.2d 105, 106-07 (7th Cir.1964)). In Hickman, however, this court went on to hold that the trial judge had committed plain error. Hickman, 592 F.2d at 936. In Hill, the case quoted in Hickman, the defendant had failed to object to only some of the court's questions which were criticized on appeal. Hill, 332 F.2d at 106. Because in the instant case appellant did not object to any of the trial judge's questions or comments nor did he argue that to do so would have exacerbated the situation, this court will not reverse the trial court unless the trial judge committed plain error. See also United States v. Smith, 561 F.2d 8, 13 (6th Cir.1977) (where no contemporaneous objections to the trial court's active participation were made, plain error standard applied). The plain error doctrine mandates reversal " 'only in exceptional circumstances' and only where the error is so plain that 'the trial judge and prosecutor were derelict in countenancing it.' " United States v. Mendez-Ortiz, 810 F.2d 76, 78 (6th Cir.1986) (quoting United States v. Hook, 781 F.2d 1166, 1172 (6th Cir.) (quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982)), cert. denied, --- U.S. ----, 107 S.Ct. 269, 93 L.Ed.2d 246 (1986)), cert. denied, --- U.S. ----, 107 S.Ct. 1384, 94 L.Ed.2d 697 (1987).

Appellant argues that the trial judge's questioning of three witnesses for the prosecution's case in chief was impermissible. First, after defense counsel finished cross-examination of Edgar Waugh, the manager of Stamper's grocery where Slone and Cox allegedly purchased large quantities of sugar for alcohol production, the prosecution offered no redirect. The trial judge then asked eleven questions which app...