United States v. Crutcher

• Citation: 405 F.2d 239
• Decision Date: 12 September 1968
• Docket Number: Docket 31223.,No. 497,497
• Parties: UNITED STATES of America, Appellee, v. George CRUTCHER, Hampton C. Hazel, also known as Robert Jones, and John Payne, Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

405 F.2d 239 (1968)

UNITED STATES of America, Appellee, v. George CRUTCHER, Hampton C. Hazel, also known as Robert Jones, and John Payne, Appellants.

No. 497, Docket 31223.

United States Court of Appeals Second Circuit.

Argued June 20, 1968.

Decided September 12, 1968.

Certiorari Denied March 10, 1969.

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Frederick W. Danforth, Jr., and Arthur B. LaFrance, New Haven, Conn., for appellants.

John Cassidento, Asst. U. S. Atty., New Haven, Conn. (Jon O. Newman, U. S. Atty., for the District of Connecticut, Hartford, Conn., of counsel), for appellee.

Before MOORE and FRIENDLY, Circuit Judges, and BRYAN,^* District Judge.

Certiorari Denied March 10, 1969. See 89 S.Ct. 1018.

MOORE, Circuit Judge:

On the morning of August 9, 1966, a truckdriver pulled off the Connecticut turnpike into a rest area in Westport, Connecticut. As he left the cab of his truck, he was assaulted by three men who left him bound and gagged in the rest area. He freed himself after 20-25 minutes and called the police. Wallace Minniefield and John Davis, Jr., accomplices of the defendants, drove off in the truck, but were arrested when they stopped at a toll station in New Rochelle, New York. The other hijackers, defendants herein, were ultimately arrested in New Jersey.

A four-count indictment was handed down, charging the appellants and Minniefield and Davis with transporting a stolen motor vehicle in interstate commerce, knowing it to have been stolen (18 U.S.C. § 2312); interstate transportation of stolen goods having a value in excess of $5,000, knowing the same to have been stolen (18 U.S.C. § 2314); theft of goods exceeding $100 in interstate commerce (18 U.S.C. § 659) and conspiracy to transport a stolen motor vehicle in interstate commerce, knowing it to have been stolen (18 U.S.C. §§ 371, 2312). Minniefield and Davis pleaded guilty to the conspiracy charge and subsequently testified for the government.

At the trial the truckdriver identified Crutcher as one of his assailants and Minniefield and Davis corroborated his statement. Minniefield and Davis identified the other hijackers as Payne and Hazel and testified concerning the events leading up to the theft of the truck. The defense was alibi. The defendants appeal from a judgment of conviction entered upon a jury verdict finding them guilty on all counts.

I.

Payne argues on appeal that his constitutional and statutory rights were violated when the jury was impanelled in his absence and that his trial and conviction are therefore defective. The trial was scheduled to begin Wednesday, February 15, 1967, in the Connecticut District Court in New Haven. On Monday morning February 13th, Payne was arrested by State authorities, to whom he gave a fictitious name, in Jersey City, New Jersey, on charges unrelated to this proceeding. On Wednesday morning the United States Attorney's Office in New Haven was notified of Payne's arrest but an attempt to have him brought to New Haven that day was not successful. The following colloquy took place Wednesday between the court and Mr. Ramsey, the attorney who represented the defendant at trial:

The Court: And Mr. Ramsey —

Mr. Ramsey: Yes, your Honor. I have been requested by Mr. Saunders to represent Mr. Payne, who is not present in court this morning.

The Court: I understand there is a problem there. Now ordinarily, Mr. Ramsey, I would entertain an application for a continuance. I think you know from prior experience in this court I will lean over backward to accommodate counsel, whether court-appointed or otherwise.

Mr. Ramsey: Yes, your Honor.

The Court: But under all the circumstances of this case, and particularly of Mr. Payne, I do feel it necessary to go forward with the impanelling of the jury.

And I might say, just to be quite candid about it and to perhaps set you at ease about the matter, that I will direct the impanelling of the jury despite Mr. Payne\'s absence. I would hope, however, that it might be possible for you to proceed even in Mr. Payne\'s absence, with the impanelling of the jury, and participate, exercise challenges, etc.

* * * * * *

Mr. Ramsey: We have agreed, your Honor, on the impanelling of the jury without Mr. Payne. We don\'t think this would prejudice his case." (Transcript at 3-4)

Payne was brought to New Haven prior to the first day of trial on Thursday, and the record shows no objection by him or through his counsel to the fact that the jurors were impanelled in his absence. However, there is also no indication that Payne was advised of, or waived, his right to be present.

Article III, § 2 of the Federal Constitution and the Sixth Amendment thereto give the defendant in a criminal case the right to a public jury trial, and it is an elementary principle of due process that a defendant must be allowed to be present at his own trial.¹ In addition, Rule 43 of the Federal Rules of Criminal Procedure provides in pertinent part:

"The defendant shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and at the return of the verdict, and at the imposition of sentence, except as otherwise provided by these rules." (Emphasis added.)

Rule 43 is derived in part from two early Supreme Court cases, Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892) and Hopt v. People of Territory of Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884) (cited and discussed in Lewis). 18 Moore, Federal Practice § 43.012 (1968). In Hopt the Court held that in a felony case the trial of challenges to proposed jurors by "triers" appointed by the court must be carried out in the presence of the accused. The failure to have the challenges tried in his presence was reversible error even in the absence of an objection. In Lewis the Court reversed the conviction of a defendant who had not seen the jurors until after the challenges had been made and the jurors selected, holding that the "making of challenges was an essential part of the trial, and that it was one of the substantial rights of the prisoner to be brought face to face with the jurors at the time when the challenges were made." 146 U.S. at 376, 13 S.Ct. at 138. The Court also stated:

"A leading principle that pervades the entire law of criminal procedure is that, after indictment found, nothing shall be done in the absence of the prisoner. While this rule has at times, and in the cases of misdemeanors, been somewhat relaxed, yet in felonies it is not in the power of the prisoner, either by himself or his counsel, to waive the right to be personally present during the trial."

However, despite the language in Lewis as to waiver, the right to be present at one's trial is a personal right that may be waived by a defendant. Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912); Parker v. United States, 184 F.2d 488 (4th Cir. 1950). Since there is no dispute that the mandates of Rule 43 have not been complied with in this case, the issue is whether Payne or his counsel have made an effective waiver. The government asserts that Payne made a voluntary waiver when he gave a false name to the New Jersey authorities. The basis for this contention is that if he had stated his correct name he "would have in all probability been brought up with appellant Hazel who was arrested by New Jersey authorities on the same day." (Appellee's Brief at p. 8.) There is no factual basis for this qualified assertion in the record, and even if it were true, the giving of a false name, under the circumstances, could hardly constitute either a knowing or a voluntary waiver. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357 (1938); Evans v. United States, 284 F.2d 393 (6th Cir. 1960). Indeed, there is authority for the proposition that a defendant in custody does not have the power to waive his right to be present. See Diaz v. United States, 223 U.S. at 455, 32 S.Ct. 250 (dictum); Cross v. United States, 117 U.S.App.D.C. 56, 325 F.2d 629 (1963); Evans v. United States, supra; 8 Moore, Federal Practice § 43.022 (1968).

The government also argues that Payne's counsel waived Payne's right to be present during the jury selection process by the statement quoted above. The exact status of Mr. Ramsey at the time of impanelling is unclear from the record before us. It appears that Mr. Saunders, who represented Payne in New Jersey, requested Mr. Ramsey to represent Payne in New Haven and that Mr. Ramsey was later appointed by the court under the Criminal Justice Act, 18 U.S.C. § 3006A, due to Payne's lack of funds. But there is no indication that Payne had talked to, or retained, Mr. Ramsey prior to the actual trial or whether he had authorized Mr. Saunders to retain Mr. Ramsey or other counsel. Mr. Ramsey's competence to waive Payne's right to be present at the impanelling of the jury is, therefore, subject to doubt. However, even assuming he did have authority to act as Payne's counsel, he would not have the ability to bind Payne to a decision of this type without obtaining Payne's consent. Evans v. United States, supra.

The government contends that even if Payne or his counsel had not made an effective waiver prior to trial, Payne's failure to object to the jury panel when he did appear on the 16th and his silence thereafter operates as a waiver. However, there is nothing in the record from which we can infer that Payne was advised of his rights under Rule 43 and that he knowingly and voluntarily agreed to proceed with the jury that had been impanelled. Compare Echert v. United States, 188 F.2d 336 (8th Cir. 1961). On the other hand, if Payne's counsel did discuss this point with him and he agreed to proceed with the jury that had been selected, waiver may be found. Compare Parker v. United States, 184 F.2d 488 (4th Cir. 1954) where five witnesses testified in defendant's absence and waiver was found from the fact that the defendant read the transcript of their testimony and from...