U.S. v. Walker

• Citation: 557 F.2d 741
• Decision Date: 24 June 1977
• Docket Number: No. 76-1255,76-1255
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William A. WALKER, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 741

557 F.2d 741

UNITED STATES of America, Plaintiff-Appellee, v. William A. WALKER, Defendant-Appellant.

No. 76-1255.

United States Court of Appeals Tenth Circuit.

Argued and Submitted Jan. 27, 1977.

Decided June 24, 1977.

Michael S. Axt, Asst. Federal Public Defender, Denver, Colo. (Daniel J. Sears, Federal Public Defender, Denver, Colo., on brief), for defendant-appellant.

Jerre W. Dixon, Asst. U. S. Atty., Denver, Colo. (James L. Treece, U. S. Atty., Denver, Colo., on brief), for plaintiff-appellee.

Before LEWIS, Chief Judge, and BREITENSTEIN and SETH, Circuit Judges.

LEWIS, Chief Judge.

Defendant Walker appeals a judgment of conviction and sentence entered upon a jury verdict of guilty to one count of knowingly obtaining and exercising control over $1786 of government funds in the possession of the Lowry Air Force Base Officer's Club in Denver, Colorado, in violation of the Assimilative Crimes Act, 18 U.S.C. §§ 7, 13, and the Colorado theft statute, § 18-4-401, Colo.Rev.Stats.Ann. (1973). ¹ The questions presented on appeal are whether the retrial from which this conviction and sentence arose was barred by principles of former jeopardy, whether the trial court erred in refusing to provide additional instructions requested by the jury during its deliberations, and whether Walker was improperly indicted under the Assimilative Crimes Act.

I.

On August 15, 1975, one Joyce Wright, a cashier at the Lowry Air Force Base Officer's Club, reported a robbery of $1786. Wright and defendant Walker, with whom she was living at the time of the reported robbery, were subsequently indicted under the Assimilative Crimes Act, 18 U.S.C. §§ 7, 13, for knowingly obtaining and exercising control over the personal property of another in violation of the Colorado theft statute, § 18-4-401, Colo.Rev.Stats.Ann. (1973), the government alleging the robbery was "staged." Wright was convicted and sentenced upon her plea of guilty. Walker was brought to a jury trial on December 9, 1975.

During the first day of Walker's trial a key government witness, Joanna London refused to testify after having taken the stand. Acting upon the representations of counsel for the government that Ms. London had been threatened and warned against testifying by Walker's friends and relatives, the trial court called a recess and appointed counsel for Ms. London. After Ms. London had been afforded an opportunity to confer with counsel, court was reconvened outside the presence of the jury. Ms. London was again placed on the stand, testified she knew and could identify Walker, but refused to answer further questions despite a direct order of the court to do so. When the preliminary attempts by the government to lay a foundation for the admission of her prior statement to an FBI agent proved unsuccessful, the witness was excused and placed in protective custody. As the witness attempted to leave the courtroom she was accosted by Walker's friends and relatives in the hallway and the assistance of the marshals was required to effect her departure. The jury was then recalled and after the government had presented the remainder of its case, court was again recessed. The following morning court was reconvened outside the presence of the jury. After being informed by Ms. London's court-appointed counsel that in his opinion his client was prepared to testify, the jury was brought in and Ms. London recalled. The witness again testified that she knew and could identify Walker, but refused to respond to additional questions in defiance of further orders from the court to do so. The witness then attempted to leave the courtroom, but was restrained from doing so by the marshals. The court thereupon declared a mistrial stating, "I do not see how any jury could overlook what this jury has seen." The court found that the events that had transpired had produced an "aura of intimidation" precluding a fair trial either for Walker or for the government. Walker advised the court he did not consider a mistrial necessary and was willing to advise the witness she had his permission to testify. The court denied this request and proceeded to make an extensive record of the grounds on which the mistrial was granted. ²

Walker was retried on January 5, 1976, before a different trial judge, the original trial judge having recused himself at Walker's request. Walker's motion to dismiss based on former jeopardy was denied and testimony essentially the same as that presented during the first trial was adduced. Ms. London was again called as a government witness and testified Walker had admitted to her that he and Joyce Wright had planned the "staged" robbery and that he had gone to Lowry Air Force Base to "pick up" the monies previously taken by Joyce Wright. At the conclusion of the government's case the trial court entered a judgment of acquittal on a second count of the indictment alleging a similar staged robbery at a later date. Walker then called as his sole witness Joyce Wright, who testified she was responsible for the taking of the funds from the Officer's Club and that Walker had nothing to do with it. The case was submitted to the jury and a verdict of guilty was returned.

On appeal Walker renews his contention that the retrial was barred by principles of former jeopardy since the mistrial was improperly granted over his objection. It is well settled that where a mistrial is granted over defendant's objection, the defendant may be retried only if "there is a manifest necessity for the (mistrial), or the ends of public justice would otherwise be defeated," United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165, or, more precisely, if "the public's interest in fair trials designed to end in just judgments" would otherwise be defeated. Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974; Illinois v. Somerville, 410 U.S. 458, 461, 93 S.Ct. 1066, 35 L.Ed.2d 425; United States v. Jorn, 400 U.S. 470, 481, 91 S.Ct. 547, 27 L.Ed.2d 543; Gori v. United States, 367 U.S. 364, 368-69, 81 S.Ct. 1523, 6 L.Ed.2d 901; Simmons v. United States, 142 U.S. 148, 153-54, 12 S.Ct. 171, 35 L.Ed. 968. In adhering to this "manifest necessity" test, the Court has consistently "abjure(d) the application of any mechanical formula by which to judge the propriety of declaring a mistrial in the varying and often unique situations arising during the course of a criminal trial." Illinois v. Somerville, supra, 410 U.S. at 462, 93 S.Ct. at 1069. Rather, the Court has afforded broad discretion to the trial judge, "who is best situated intelligently to make such a decision," to determine after taking "all circumstances into account" whether the ends of public justice require the declaration of a mistrial without the defendant's consent and even over his objection. Gori v. United States, supra, 367 U.S. at 368, 81 S.Ct. 1526.

In the case at bar the trial judge was in the best position to observe the demeanor of the reluctant witness and to assess the effects of the extra-judicial disturbances on the jury. Assuming as we must that the defendant was in no way responsible for the disturbances or the intimidating acts directed toward the witness, our review of the extensive record compiled by the trial judge convinces us there was no abuse of discretion in the trial court's finding that the "aura of intimidation" generated by the witness's obvious reluctance to testify, her apparent fear for her personal safety, and the disturbances within and without the courtroom precluded the possibility of a fair trial either for the defendant or the government. Moreover, every effort was made to secure the witness's testimony without exposing the jury to potentially prejudicial occurrences and nothing appears in the record to support a claim that the incidents leading to the declaration of a mistrial were the result of either prosecutorial or judicial misconduct. Cf. United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (judicial misconduct); Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (prosecutorial negligence). Since there was no abuse of discretion on the part of the trial court in the grant of the mistrial, Walker's motion to dismiss on the basis of former jeopardy was properly denied at the commencement of the retrial.

II.

During the course of its deliberations the jury, through its foreman, sent the following note to the trial judge requesting additional instructions:

Does the defendant have to be found guilty on all counts of the indictment. (sic) THE (sic) question is: did knowingly obtain and excerise (sic) control. (sic) &

Or should it read and/or

The trial judge responded, also by note: "I cannot answer the request contained in your note. You must rely upon your memories as to the instructions given." Nothing appears in the record to indicate how these communications were exchanged or whether Walker and his counsel were advised of the jury's communication and afforded an opportunity to be heard before the trial court responded. Indeed the two notes were not included in the original record, but were added as a supplemental record upon defendant's motion approximately three and one-half months after the conclusion of the trial.

Although Walker does not specifically raise this issue on appeal, Fed.R.Crim.P. 43 guarantees a defendant the right to be present "at every stage of the trial including the impaneling of the jury and the return of the verdict." In ruling on the applicability of this rule to cases in which communications are received from the jury during the course of its deliberations, the Supreme Court has held:

Cases interpreting the Rule make it clear, if our decisions prior to the promulgation of the Rule left any doubt, that the jury's message should (be) answered in open court and that (defendant's) counsel should (be) given an opportunity to be heard before the trial judge respond(s).

Rogers v. United States, 422 U.S. 35, 39, 95 S.Ct....