United States v. Peterson, No. 24299.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: LEVENTHAL, ROBINSON and MacKINNON, Circuit
• Citation: 483 F.2d 1222
• Parties: UNITED STATES of America v. Bennie L. PETERSON, Appellant.
• Docket Number: No. 24299.
• Decision Date: 29 June 1973

483 F.2d 1222 (1973)

UNITED STATES of America
v.
Bennie L. PETERSON, Appellant.

No. 24299.

United States Court of Appeals, District of Columbia Circuit.

Argued March 4, 1971.

Decided June 29, 1973.

Certiorari Denied November 5, 1973.

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COPYRIGHT MATERIAL OMITTED

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Frank P. Flury, Upper Marlboro, Md. (appointed by this court), for appellant

John S. Ransom, Asst. U.S. Atty., with whom Thomas A. Flannery, U.S. Atty., at the time the brief was filed, and John A. Terry, Asst. U.S. Atty., were on the brief for appellee.

Before LEVENTHAL, ROBINSON and MacKINNON, Circuit Judges.

Certiorari Denied November 5, 1973. See 94 S.Ct. 367.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

Indicted for second-degree murder,¹ and convicted by a jury of manslaughter² as a lesser included offense,³ Bennie

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L. Peterson urges three grounds for reversal. He asserts, first that from the voir dire examination of the veniremen from among whom the jury was selected, the trial judge erroneously excluded three questions which he had requested.⁴ He contends, next, that the evidence was legally insufficient to establish his guilt of manslaughter, and that in consequence the judge erred in denying his motion for a judgment of acquittal.⁵ He complains, lastly, that the judge twice erred in the instructions given the jury in relation to his claim that the homicide was committed in self-defense. One error alleged was an instruction that the jury might consider whether Peterson was the aggressor in the altercation that immediately foreran the homicide.⁶ The other was an instruction that a failure by Peterson to retreat, if he could have done so without jeopardizing his safety, might be considered as a circumstance bearing on the question whether he was justified in using the amount of force which he did.⁷ After careful study of these arguments in light of the trial record, we affirm Peterson's conviction

I

The events immediately preceding the homicide are not seriously in dispute.⁸ The version presented by the Government's evidence follows. Charles Keitt, the deceased, and two friends drove in Keitt's car to the alley in the rear of Peterson's house to remove the windshield wipers from the latter's wrecked car.⁹ While Keitt was doing so, Peterson came out of the house¹⁰ into the back yard to protest. After a verbal exchange,¹¹ Peterson went back into the house, obtained a pistol, and returned to the yard.¹² In the meantime, Keitt had reseated himself in his car, and he and his companions were about to leave.¹³

Upon his reappearance in the yard, Peterson paused briefly to load the pistol.¹⁴ "If you move," he shouted to Keitt, "I will shoot." He walked to a point in the yard slightly inside a gate in the rear fence and, pistol in hand, said, "If you come in here I will kill you." Keitt alighted from his car, took a few steps toward Peterson and exclaimed, "What the hell do you think you are going to do with that?"¹⁵ Keitt then made an about-face, walked back to

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his car and got a lug wrench. With the wrench in a raised position, Keitt advanced toward Peterson, who stood with the pistol pointed toward him. Peterson warned Keitt not to "take another step" and, when Keitt continued onward shot him in the face from a distance of about ten feet.¹⁶ Death was apparently instantaneous. Shortly thereafter, Peterson left home and was apprehended 20-odd blocks away

This description of the fatal episode was furnished at Peterson's trial by four witnesses for the Government.¹⁷ Peterson did not testify or offer any evidence, but the Government introduced a statement which he had given the police after his arrest,¹⁸ in which he related a somewhat different version. Keitt had removed objects from his car before, and on the day of the shooting he had told Keitt not to do so. After the initial verbal altercation, Keitt went to his car for the lug wrench, so he, Peterson, went into his house for his pistol. When Keitt was about ten feet away, he pointed the pistol "away of his right shoulder;" adding that Keitt was running toward him, Peterson said he "got scared and fired the gun. He ran right into the bullet." "I did not mean to shoot him," Peterson insisted, "I just wanted to scare him."

At trial, Peterson moved for a judgment of acquittal¹⁹ on the ground that as a matter of law the evidence was insufficient to support a conviction. The trial judge denied the motion.²⁰ After receiving instructions which in two respects are challenged here,²¹ the jury returned a verdict finding Peterson guilty of manslaughter. Judgment was entered conformably with the verdict, and this appeal followed.

II

Shortly before the selection of the jury got under way, Peterson's counsel requested the trial judge to address three questions to the prospective jurors on their voir dire examination. Specifically, counsel wanted them queried as to whether any venireman believed that an inference of guilt should be drawn from the fact that Peterson had been indicted; whether any felt that in the instance of a fatality, "someone has to pay for" the taking of life; and whether any had an innate fear of firearms that might cause him to view with apprehension a person who possessed or used one. The judge denied the request in toto, and the denial is now assigned as error.

Examination of prospective jurors is a step vital to the fairness of jury trials. The information elicited on voir dire serves the dual purpose of aiding counsel in the exercise of challenges and the court in the determination of competence to serve.²² Without knowledge bearing on the qualifications of the veniremen, neither function can

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be performed intelligently.²³ To the extent that the examinatorial process is deficient, the impartiality of the jury could be compromised.²⁴

To achieve its wholesome goals, voir dire examination must be given a wise and liberal scope.²⁵ Reasonable latitude must be indulged to inquiry into attitudes and inclinations in order to assure the objectivity of the jurors ultimately chosen.²⁶ To be sure, the trial judge retains a broad discretion as to the questions which may be addressed.²⁷ But, as the Supreme Court has declared, "the exercise of this discretion, and the restriction upon inquiries at the request of counsel, are subject to the essential demands of fairness."²⁸

Peterson argues that the refusal of the three questions he submitted constituted reversible error. The judge's ruling was bottomed on the premise that the purposes for which the questions were requested would be accomplished in other ways.²⁹ The standard for our review of that ruling is whether the judge's action exceeded the bounds of discretion to Peterson's prejudice.³⁰ We find it unnecessary to consider whether the questions were proper for, in the circumstances presented, we are satisfied that their exclusion could not have operated detrimentally to him.

Near the outset of the voir dire examination, the judge instructed the veniremen

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that the indictment was not evidence in the case, but only the means by which Peterson was notified of the charge against him. This was tantamount to an admonition that no basis for an inference of guilt was afforded by the fact that Peterson had been indicted — the subject of Peterson's first question. The judge also paraphrased the charge made against Peterson by the indictment,³¹ and from that the veniremen knew that a fatality had been wrought by the discharge of a firearm — the topics upon which Peterson's other two questions focused. And, very importantly, the judge, near the conclusion of the examination, inquired as to whether there was "any reason whatsoever why anyone ... would prefer not to sit in this case or ... any reason whatsoever why you do not feel you would be a good ... fair and impartial juror?" That inquiry called upon each prospective juror, on his oath, to respond if he felt that any aspect of the case, including those of which the judge had informed, might affect his impartiality

We perceive no prejudice resultant from the denial of Peterson's request. The judge posed a general question that should have elicited instances of bias, if any at all existed, on the part of the veniremen.³² On the other hand, none of the questions which Peterson proposed — concerning the indictment, the gun or the fatality — related to a matter as to which it has become evident, through experience with juries, that there are strong feelings in the community apt to interfere with a capacity for fair and impartial verdicts, including those on claims of self-defense. Moreover, Peterson made no effort to lay a foundation for his questions by showing either that any such predilections were likely to be encountered, or that his questions were "reasonably calculated to discover an actual and likely source of prejudice, rather than pursue a speculative will-o-the-wisp."³³ In these circumstances, we decline to disturb the judge's ruling.

III

More than two centuries ago, Blackstone, best known of the expositors of the English common law, taught that "all homicide is malicious, and of course, amounts to murder, unless ... justified by the command or permission of the law; excused on the account of accident or self-preservation; or alleviated into manslaughter, by being either the involuntary consequence of some act not strictly lawful, or (if voluntary) occasioned by some sudden and sufficiently violent provocation.³⁴

Tucked within this greatly capsulized schema of the common law of homicide is the branch of law we are called upon to administer today. No issue of justifiable homicide, within Blackstone's definition is involved.³⁵ But Peterson's consistent

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position is that as a matter of law his conviction of manslaughter — alleviated homicide — was wrong, and that his act was one of self-preservation — excused homicide. The Government, on the other hand, has contended from the beginning...