U.S. v. Thompson, s. 84-5028

• Decision Date: 05 October 1984
• Docket Number: Nos. 84-5028,s. 84-5028
• Citation: 744 F.2d 1065
• Parties: UNITED STATES of America, Appellee, v. Dwayne THOMPSON, Appellant. UNITED STATES of America, Appellee, v. Betty Ruth THOMPSON, Appellant. (L), 84-5029.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1065

744 F.2d 1065

UNITED STATES of America, Appellee, v. Dwayne THOMPSON, Appellant.

UNITED STATES of America, Appellee, v. Betty Ruth THOMPSON, Appellant.

Nos. 84-5028(L), 84-5029.

United States Court of Appeals, Fourth Circuit.

Argued July 10, 1984.

Decided Oct. 5, 1984.

Edward F. Connors, III, Albert Henry Counts, Jr., Alexandria, Va. (R. Ramsey Maupin, Arlington, Va., and Christopher Beatley, Alexandria, Va., on brief), for appellants.

Justin Williams, Asst. U.S. Atty., Alexandria, Va. (Elsie L. Munsell, U.S. Atty., Thomas M. Buchanan, Asst. U.S. Atty., Alexandria, Va., on brief), for appellee.

Before PHILLIPS, MURNAGHAN and ERVIN, Circuit Judges.

ERVIN, Circuit Judge:

Betty Ruth Thompson and Dwayne Thompson were convicted of involuntary manslaughter in violation of 18 U.S.C. Sec. 1112. On appeal the Thompsons contend they were denied a fair trial when one juror was equivocal about his ability to continue the trial with an open mind. Finding merit in this argument, we reverse.

I.

On December 11, 1982, Mrs. Thompson brought her four month old son, Julius Thompson, to the Dewitt Army Hospital. The child was pronounced dead on arrival. On December 14, 1982, Dr. Renata Greenspan, an Army pathologist, conducted an autopsy on the infant. Based on her autopsy and interviews with the Thompsons, Dr. Greenspan concluded that Julius died of meningitis complicated by malnutrition and starvation.

A federal grand jury for the Eastern District of Virginia subsequently indicted Mr. and Mrs. Thompson for the murder of their son. The Thompsons pleaded not guilty to the charge of murdering their child by starvation and gross neglect in violation of 18 U.S.C. Sec. 1111 and Sec. 2.

The case was tried from December 5-7, 1983, before a jury. Dr. Greenspan testified that Julius had been starved for approximately two months. To illustrate her testimony, the government presented a blown-up black and white photograph of Julius made by Dr. Greenspan three days after his death, which the trial court admitted into evidence. After viewing the photograph, one of the jurors, William Price, informed a marshal that the photograph had upset him.

When the marshal brought the juror's concern to the court's attention, the judge spoke with the juror. After the judge cautioned the juror that evidence is often upsetting, the following colloquy occurred.

THE COURT: And I want to make sure that you do understand that there are two sides to this case.

THE JUROR: I understand that, your Honor. I have sat on another jury this term. I am familiar with trying to keep an open mind throughout the trial. I am not really trying to make any statement at all, just telling you because of the way I felt after I saw it, I just really thought that it moved me quite heavily. I thought that I should tell you about it.

THE COURT: Just so it does not move you so heavily that you cannot listen with an open mind to what the Defendants have to say in the case.... I want you to make sure you can keep an open mind until you have heard all of the evidence before making any decision on the Defendants' guilt or innocence.

You have brought it to my attention, and I appreciate that, but I do want to make sure that you still have an open mind in the matter.

THE JUROR: Again, your Honor, the reason for bringing it up was because I don't think that I do, and just to be fair, I realize it's very late in the day to be telling you this, but--

THE COURT: Not late in the day. It means we will have to start all over again.

THE JUROR: I understand that. That is why this is very hard, because if I had any discrepancy, I should have said it this morning. At that time I did not. It wasn't until I saw the picture that I even felt that way at all. I understand there are two sides to the case; however, because of my personal circumstances at home and so on, in seeing that I just think that--I am just not sure that I could be totally fair. I would try to be as much as I could, but I am just not sure I could be totally fair.

(J.A. 17-18).

A bench conference followed at which time the Thompsons' attorneys moved for a mistrial. In discussing the situation with the prosecution and the defense attorneys, the judge stated that absent extraneous influence he was "not willing to let a juror halfway through a trial tell me, 'I can't be impartial anymore,'. ..." (J.A. 19). Indicating that the expense of a mistrial was unnecessary, the judge proposed to admonish Price not to make up his mind until he had heard all the evidence. The judge then denied the defendants' motion for a mistrial.

After making his ruling, the judge explained to Price that it was important to keep an open mind. The judge emphasized that all defendants are presumed to be innocent and that the burden is on the government to prove guilt beyond a reasonable doubt. The judge then stated: "So, I will ask you to resume with the case. Do you think you can do so?" Price replied, "I will try. I am not sure, your Honor." The judge did not seek an affirmative response but said, "All right. That is all I can ask." (J.A. 23).

On appeal the Thompsons contend that the trial court should have granted a mistrial when Price indicated that the photograph had upset him and was equivocal about his ability to proceed impartially. Finding merit in this argument, we decline to address the Thompsons' other contentions.

II.

Under the sixth amendment a criminal defendant has the right to a trial by an impartial jury. Reynolds v. United States, 98 U.S. (8 Otto) 145, 154, 25 L.Ed. 244 (1879). That right is compromised when the trier of fact is unable to render a disinterested, objective judgment. When a question is raised before the jury retires about whether a juror can fulfill his duties with an open mind, the district court must determine that the juror is competent to proceed before continuing with the trial. See United States v. Krohn, 560 F.2d 293, 297 (7th Cir.), cert. denied, 434 U.S. 895, 98 S.Ct. 275, 54 L.Ed.2d 182 (1977).

Although the court must give primary attention to the possibility of a biased juror, a valid concern may be the expense and loss of time associated with a mistrial. In United States v. Taylor, 554 F.2d 200 (5th Cir.1977), a juror expressed doubt about whether she could be open-minded two days after the trial had begun. Holding that the trial judge abused his discretion in failing to excuse the juror, the Fifth Circuit stated: "The trial judge was properly concerned about the possibility of a mistrial and the resulting expense and loss of judicial time a retrial would have caused. However, this concern must be weighed against appellants' right to a trial by an impartial jury." Id. at 202. Although it is within a trial judge's discretion to determine the credibility of a juror's statements of bias and prejudice, the court noted that when a juror "did not know whether she could be openminded about the trial, the concern of the possible mistrial paled to insignificance. The right to an impartial jury ... dominated all other considerations." Id.

The decision to grant or to deny a mistrial is within the discretion of the trial judge, and the court's decision will not be overruled on appeal except for a clear abuse of discretion. United States v. Alonzo, 689 F.2d 1202 (4th Cir.1982). Alternatives less drastic than a mistrial are available to the court, however. A biased juror can be dismissed and replaced with an alternate juror. Fed.R.Crim.P. 24(c). Accord Arizona v. Washington, 434 U.S. 497, 512 n. 31, 98 S.Ct. 824, 834 n. 31, 54 L.Ed.2d 717 (1978); United States v. Steed, 465 F.2d 1310, 1315-16 (9th Cir.), cert. denied, 409 U.S. 1078, 93 S.Ct. 697, 34 L.Ed.2d 667 (1972). Another alternative is for the parties to stipulate to a jury of less than twelve persons. Fed.R.Crim.P. 23(b). E.g., United States v. Yonn, 702 F.2d 1341, 1344 (11th Cir.), cert. denied sub nom. Weeks v. United States, --- U.S. ----, 104 S.Ct. 283, 78 L.Ed.2d 261 (1983) (parties stipulated to continue trial with eleven jurors).

We are convinced that this is a case in which the trial court abused its discretion in proceeding with the trial after Price gave an equivocal response to repeated questions about his ability to proceed with an open mind. At that point, the trial court should have asked for an affirmative response. When Price was not able to state unhesitatingly that he could keep an open...