United States v. Lanham
Decision Date | 05 September 1969 |
Docket Number | No. 27270 Summary Calendar.,27270 Summary Calendar. |
Citation | 416 F.2d 1140 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Luther Lee LANHAM, Defendant-Appellant. |
Court | U.S. Court of Appeals — Fifth Circuit |
Kelly Dan Williams, court appointed, Houston, Tex., for appellant.
Anthony J. P. Farris, U. S. Atty., James R. Gough, George R. Pain, Theo W. Pinson, III, Asst. U. S. Attys., Houston, Tex., for appellee.
Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.
Pursuant to new Rule 18 of the Rules of this Court, we have concluded on the merits that this case is of such character as not to justify oral argument and have directed the Clerk to place the case on the Summary Calendar and to notify the parties in writing. See Murphy v. Houma Well Service, 5 Cir. 1969, 409 F. 2d 804, Part I.
The sole issue presented on this appeal is whether the trial judge improperly injected himself into the trial below as a prosecutor in such manner and to such extent as to deny the appellant a fair and impartial trial. We agree with the appellant that this is what occurred and reverse for a new trial.
Lanham was indicted and convicted for violation of the National Motor Vehicle Theft Act, sometimes called the Dyer Act, Title 18, U.S.C., Section 2312. He received a five year confinement sentence and is presently serving his sentence.
Lanham was charged and tried jointly with a co-defendant, David James Larson, for the transportation interstate of a stolen 1965 red Volkswagen from New Orleans, Louisiana, to Houston, Texas. The Volkswagen disappeared from the French Quarter in New Orleans without the owner's permission and was found on a parking lot on the campus of Rice University, Houston. A white 1964 Volkswagen disappeared without permission from the parking lot about the same time. The defendants were found in possession of the white Volkswagen in Terrell County, Texas, and arrested. The government's case rested substantially on these circumstances and upon incriminating statements made by both Larson and Lanham to state and federal investigative agents.
When it came time for the defendants' case the first witness was Larson. He gave his age as 18 and related that he and Lanham hitchhiked to Houston with a Mr. Wilson in a black Ford, and that they were also hitchhikers in the white Volkswagen. By actual count in the transcript, his counsel asked him 36 questions and the prosecuting attorney then asked 55 questions in cross-examination. The presiding judge then took over Larson for a searching, probing examination that required 119 questions. We quote some excerpts in the margin.1
Lanham took the stand in his own defense at the conclusion of Larson's testimony. He admitted two prior felony convictions. He substantially corroborated Larson and told of their hitchhiking from New Orleans to Houston, where they were picked up by the driver of the white Volkswagen near the Astrodome. Following the government's cross-examination, the trial judge again embarked upon rigorous examination on his own.2 Again, the statistical count of questions is significant. This time the count stood: defense counsel: 23 questions; government counsel: 17 questions; and the trial judge: 66 questions. The two defendants were the only witnesses for the defense.
In rebuttal, after recalling Sheriff Cooksey of Terrell County for a few questions, the prosecution recalled its principal F.B.I. witness, Special Agent Ivey. The court's examination of this witness was extensive. It had largely to do with the warnings given Larson and Lanham before taking statements from them and as to whether promises had been made with respect to possible state charges involving the white Volkswagen. The leading nature of a number of these questions is illustrated by the following:
The government counsel announced closed. But that was not the end of the testimony before the jury. A recess was taken while a court witness, Louis Teal, was brought into the courtroom. He was in custody as an inmate, along with Lanham, of the Harris County Rehabilitation Center. The trial judge proceeded to examine Teal, after taking precautions that his testimony would not be transcribed except upon court order for a court-approved purpose. Teal's testimony impeached Lanham, who had testified that one statement he had given to Special Agent Ivey was based upon information told him by a tall, red-haired young man. Teal identified Lanham as a fellow inmate, one he had talked to, but denied telling Lanham what Lanham had ascribed to him about the interstate nature of his own auto theft charges. We quote portions of this unusual procedure in the margin.3 Neither counsel took advantage of the court's offer to permit them to examine the witness and both sides again announced closed.
It seems clear that the trial judge determined in his own mind that Lanham was giving perjured testimony and set out to demonstrate this to the jury.
In a word, he took over prosecution. This we may not permit.
The court-appointed counsel for the defendants, for some reason, failed to object.4 We consider this unimportant. "Plain error", Rule 52(a), F.R. Crim.P., was committed, and in the language of that rule we notice it although it was not brought to the attention of the trial court. The impartial trial atmosphere, the "cold neutrality of an impartial judge", the defendant Lanham's credibility, his presumption of innocence, and any chance whether guilty or innocent, that he had of a successful defense, all were demolished, along with his Fifth Amendment right not to be deprived of his liberty without due process of law.
Of course, this Circuit has consistently followed the universal5 condemnation of such excursions by judges outside the scope of their classic trial function. We note several of our own earlier cases simply to illustrate and underscore the principle involved and to attest to its undiminished vitality.
In Gomila v. United States, 5 Cir. 1944, 146 F.2d 372, we said:
Earlier we had held in Hunter v. United States, 5 Cir. 1932, 62 F.2d 217:
We close with an extended quotation from an expression of this Court nearly 60 years ago:
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