United States v. Wyatt, 24106.

• Decision Date: 02 March 1971
• Docket Number: No. 24106.,24106.
• Citation: 442 F.2d 858
• Parties: UNITED STATES of America v. Horace L. WYATT, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

442 F.2d 858 (1971)

UNITED STATES of America v. Horace L. WYATT, Appellant.

No. 24106.

United States Court of Appeals, District of Columbia Circuit.

Argued December 8, 1970.

Decided March 2, 1971.

Mr. Milton I. Baldinger, Washington, D. C. (appointed by this Court) for appellant.

Mr. John R. Dugan, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., John A. Terry and David T. Austern, Asst. U. S. Attys., were on the brief, for appellee.

Before WRIGHT and ROBINSON, Circuit Judges, and GORDON,^* District Judge, U.S. District Court for the Eastern District of Wisconsin.

MYRON L. GORDON, District Judge:

After a jury trial, the appellant was convicted in the district court of robbery and assault with a dangerous weapon. His appeal raises certain issues which, in our opinion, require a new trial.

On August 17, 1968, the manager of a Washington movie theater was forced by two armed men to open the safe in his office and to turn over the cash inside. His wallet was also taken. On September 7, 1968, the victim saw the appellant at another theater and notified the police that he was one of the two men who had assaulted and robbed him on August 17th. The police arrived and took the appellant into custody.

The appellant's principal defenses were alibi and mistaken identity. During the course of the trial, the judge extensively interrogated both the appellant and his alibi witness and this, the appellant contends, led the jury to believe that the judge doubted the appellant's veracity. Such questioning, he argues, went beyond the limits of proper judicial participation in the trial.

"In a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law." Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 77 L.Ed. 1321 (1933). There is little doubt that he may, when appropriate, question a witness "in aid of truth and in furtherance of justice." Gomila v. United States, 146 F.2d 372, 374 (5th Cir. 1944). See United States v. Hill, 332 F.2d 105 (7th Cir. 1964), and Griffin v. United States, 83 U.S. App.D.C. 20, 164 F.2d 903 (1947), cert. denied, 333 U.S. 857, 68 S.Ct. 727, 92 L. Ed. 1137 (1948).

On the other hand, the trial judge should maintain an aura of impartiality so as not to give the jury the impression that he believes the defendant is guilty. This is especially critical in a case like the one at bar where the evidence arrayed against the appellant was not overwhelming and where the credibility of the appellant was a particularly important factor in establishing the validity of his defenses. See United States v. Levi, 177 F.2d 827, 830 (7th Cir. 1949).

The appellant argues that the sheer number of the judge's questions established his apparent disbelief in the accused's defense. We would reject any strictly quantitative approach in determining whether the judge's participation in the questioning was improper. However, many of the questions asked by the trial judge in the present action opened new areas of inquiry or gave an undue eminence to matters otherwise irrelevant to the offenses with which the appellant was charged.

For example, no reference had been made up to the point in the trial where the judge questioned Mr. Wyatt about his interview with the bail agency; the following answers elicited by the judge during the direct examination suggested that there had been a lack of candor on the part of the appellant:

"THE COURT: Did you tell the Bail Agency when they interviewed you that you were unemployed?

"THE WITNESS: Sir?

"THE COURT: Did you tell the Bail Agency when they interviewed you that you were unemployed?

"THE WITNESS: Part-time work.

"THE COURT: Did you tell them you were unemployed?

"THE WITNESS: No sir."

Other questions resulted in testimony from which the jury could have inferred that the bail agency had some difficulty in getting the appellant's correct home address.

We believe that the foregoing inquiry into a matter which had no apparent relation to the appellant's guilt or innocence may have damaged the appellant's credibility in the eyes of the jury.

Later on, the appellant testified that his mother had told him that she had gotten "a phone call from a show, the manager called with a job." This, he said, accounted for his presence in the Playhouse Theatre on the day of his arrest. Nothing, however, had been said regarding the exact identity of the caller or the place to which the appellant was to report for the alleged job. The judge then questioned the appellant as follows:

"THE COURT: Who called her?

"THE WITNESS: I don\'t know. And I went past that show and asked for the manager.

"THE COURT: Did your mother tell you that she got a call from the manager of the Playhouse Theatre telling her there was a job open?

"THE WITNESS: She said a man called from a show.

"THE COURT: A man called your mother from the Playhouse Theatre?

"THE WITNESS: About a job. And I went downtown.

"THE COURT: Do you know why your mother should have been called?

"THE WITNESS: Some man called her and she told me about it and I was looking for a part-time job because this University Club, you see, I didn\'t have a regular job there. The boys come in and quit and I was taking their place."

On redirect examination, the judge asked:

"THE COURT: Where did she say the job was offered?

"THE WITNESS: She said she had the number but she said somewhere downtown.

"THE COURT: How did you happen to go to the Playhouse?

"THE WITNESS: I figured the first show I get to I would ask the man.

"THE COURT: Why did you pick out the Playhouse? There are a number of theatres downtown.

"THE WITNESS: I went to the nearest one because she said it ain\'t too far from the house.

"THE COURT: Too far from what house?

"THE WITNESS: I live on P Street and she said downtown. And the first show I got to I went in and asked the guy and he said the manager wasn\'t in and I was going downtown a little further."

These questions and the answers they provoked went beyond mere clarification; they examined a topic which had not been explored by counsel. What was true in United States v. Hill, 332 F.2d 105, 106 (7th Cir. 1964), is true here:

"The government was represented by able trial counsel and there was no apparent reason why that counsel needed any help on the

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