United States v. Cockerham

• Decision Date: 28 March 1973
• Docket Number: No. 71-1955.,71-1955.
• Parties: UNITED STATES of America, v. James L. COCKERHAM, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

155 US App. DC 97, 476 F.2d 542 (1973)

UNITED STATES of America, v. James L. COCKERHAM, Appellant.

No. 71-1955.

United States Court of Appeals, District of Columbia Circuit.

March 28, 1973.

Bruce J. Terris, Washington, D. C. (appointed by this court), was on the brief for appellant.

Harold H. Titus, Jr., U. S. Atty., and John A. Terry, Robert A. Shuker and Robert E. L. Eaton, Jr., Asst. U. S. Attys., were on the brief for appellee.

Before McGOWAN and MacKINNON, Circuit Judges, and WINTER,^* United States Circuit Judge for the Fourth Circuit.

PER CURIAM:

In this appeal from a jury conviction of second-degree murder, the contentions which merit discussion are that the District Court erred in failing to ask certain questions during its voir dire of prospective jurors, in admitting inflammatory evidence, and in its control of the conduct of trial respecting the presentation of appellant's insanity defense.

Appellant was indicted for the murder of, and taking indecent liberties with, a seven-year old girl whose cause of death was exsanguination from a deep slash wound across the throat. She was also strangled and scalded, and suffered a blow to the back of the skull and injuries from a sexual assault. At trial appellant revealed he would not in any material way contest the facts of the crime, but would instead rely entirely on the insanity defense.

Having decided to conduct the voir dire himself as was his right, Fed. R.Crim.P. 24(a), the trial judge solicited proposed questions from the parties. Appellant proffered fourteen, of which seven were rejected. He contends the rejected questions were designed to ascertain attitudes towards the insanity defense, and that failure to ask them deprived him of information essential to the exercise of peremptory challenges and challenges for cause. Without citation to authority, and we can find no federal cases to support this particular proposition, compare Brundage v. United States, 365 F.2d 616 (10th Cir. 1966), appellant urges that the rejection of such questions violated his right to an impartial jury.

The record suggests that the trial judge appears to have believed the insanity defense to be an inappropriate subject for examination on voir dire.¹ While we do not think this proposition stated so broadly is a safe guide to the conduct of criminal trials,² we cannot say that under the circumstances here presented the action of the trial judge constituted an abuse of the broad discretion that was his to exercise in conducting the voir dire. Aldridge v. United States, 283 U.S. 308, 310, 51 S.Ct. 470, 75 L.Ed. 1054 (1931).

Of the seven questions rejected, only four were directly related to the insanity defense, and one of these four would have revealed only the neutral fact of prior jury service when the defense was raised. Of the remaining three, the trial judge covered one in substance by his questions concerning prior study in psychology or psychiatry, and prior employment in mental institutions. The final two questions essentially probed the willingness of the veniremen to accept the insanity defense. Absent any indication in the record that would negate the presumption of prospective jurors' impartiality toward the defense,³ cf. Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Connors v. United States, 158 U.S. 408, 415, 15 S.Ct. 951, 39 L.Ed. 1033 (1895); and, in view of the careful examination conducted by the court which consumed approximately forty-five pages of transcript, we think it was not reversible error to omit further questioning.

Appellant urges that the admission of certain items of evidence was prejudicial error. We sympathize with all parties involved in the trial of such a case as this, and, while our review is designed to detect the introduction of unduly prejudicial material, we recognize the inevitability of some inflammatory material reaching the jury as the Government properly attempts to prove its case.

Appellant attempted to stipulate all facts of the crime proof of which would have tended to have inflammatory impact, and argues now that he had a right to so stipulate. We agree with other courts that have considered the matter and held there is no such right, and find that the trial judge acted properly in refusing to require the Government, which had agreed to several stipulations, to agree to others offered. United States v. Brickey, 426 F.2d 680, 686 (8th Cir. 1970); Alire v. United States, 313 F.2d 31, 34-35 (10th Cir. 1962), cert. denied, 373 U.S. 943, 83 S. Ct. 1554, 10 L.Ed.2d 699 (1963); Parr v. United States, 255 F.2d 86, 88 (5th Cir.), cert. denied, 358 U.S. 824, 79 S.Ct. 40, 3 L.Ed.2d 64 (1958). And, in our examination of the record, we find that, while the advisability of permitting certain testimony may be in doubt,⁴ taken as a whole the trial judge did not abuse his discretion in permitting evidence of the murder to be introduced. The Government's proof went both to establishing elements of the crime and to showing circumstantially that appellant perpetrated the crime in a manner inconsistent with his defense of insanity. Its probative value thus sufficiently outweighed the danger of unfair prejudice to justify its admission. See Rule 403, Proposed Rules of Evidence for United States Courts and Magistrates, 56 F.R.D. 183, 218.

Appellant contests the admission of his handwritten statement made to a psychologist who appeared as an expert witness for the defense, and who was using the statement in court to refresh his recollection. The psychologist acknowledged the statement to be a part of the basis for his diagnosis, and, apart from its discoverable nature, it was an appropriate subject for cross-examination and especially important for proper jury consideration of the insanity defense. Brawner, supra note 3, 152 U.S. App.D.C. at 26, 471 F.2d at 994 and cases cited at n. 45.

Appellant also contends that the admission of evidence of his sexual assault on the victim within the meaning of 22 D.C.Code § 3501(a) (Supp. V, 1972) was reversible error since ...