Vandergrift v. United States

• Decision Date: 05 February 1963
• Docket Number: No. 17857.,17857.
• Parties: Donald VANDERGRIFT, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

313 F.2d 93 (1963)

Donald VANDERGRIFT, Appellant, v. UNITED STATES of America, Appellee.

No. 17857.

United States Court of Appeals Ninth Circuit.

February 5, 1963.

Thomas E. Headrick, San Francisco, Cal., for appellant.

Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Criminal Section, Jo Ann Dunne and Richard Murphy, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before MAGRUDER, HAMLEY and DUNIWAY, Circuit Judges.

HAMLEY, Circuit Judge.

Convicted by a jury and sentenced on a charge of robbing postal officials, Donald Vandergrift brought this proceeding, under 28 U.S.C. § 2255, to have the judgment and sentence vacated. The district court denied the motion, holding that the files and records of the case conclusively show that the petitioner is entitled to no relief. Vandergrift appealed and the district court granted leave to proceed on the appeal in forma pauperis. We appointed counsel to represent appellant in this court.

Several grounds for relief were alleged in Vandergrift's section 2255 motion, but only one is renewed here. That ground is that his constitutional right to a fair trial by an impartial jury, guaranteed by the Fifth and Sixth Amendments, was contravened as the result of an improper remark made by the judge at the outset of the trial. The remark in question was as follows:

"This court has no intention that any of these jurors are going to be disturbed during the course of this trial, so the court will not ask any of the jurors to disclose their specific addresses."

The circumstances under which this remark was made are stated below. Immediately after the case was called for trial, and in the presence of prospective jurors sitting in the court room, counsel for co-defendant Raymond John Wagner, speaking for all defendants, objected to proceeding with the trial until they were furnished a list of jurors including the occupation and address of each. Counsel for the prosecution argued against the objection. Treating the objection as a motion that the addresses of prospective jurors be supplied, the court denied the same.

The jury box was then filled with prospective jurors after which the judge made a general statement concerning the nature of the case to all veniremen then in the court room. He then ascertained that none of the prospective jurors in the jury box were acquainted with the defendants, counsel, or principal witnesses. After these preliminaries, the judge began directing questions to a particular venireman, inquiring as to his occupation and the "approximate community" in which he lived.

At this point counsel for Wagner, again speaking for all defendants, interrupted the proceedings to renew his motion, stating that this was being done "to perfect our record. * * *" Specifically, counsel requested the court to ask the specific address and location of the jurors "so that we may know the vicinage and the exact location of his residing, and how close to any matters relating to this case." It was at this point that the judge, in again denying the request, made the questioned remark quoted earlier in this opinion.

Counsel for co-defendant Anthony Joseph Cambiano, speaking for all defendants, immediately objected to the judge's remark as being prejudicial because of the asserted inference therein that "there would be any one of the jurors bothered by anyone." Counsel for co-defendant Wagner, speaking for all defendants, then stated that they had no intention of disturbing any jurors; "* * * we merely desire the information in order that we may approximate and exercise our challenges with knowledge of the exact location, and whether there is any proximity to any possible witnesses or information, and the approximate location does not give us that satisfactory information." The motion was for a third time denied.

There was no motion for a mistrial, nor any request at that time or later, that the jury be instructed to disregard this specific remark. No such instruction was given but in the general instructions to the jury at the end of the seven-day trial, the court gave the usual instruction concerning the acts and comments of the judge during the course of the trial.¹ Neither appellant nor his co-defendants proposed any instruction dealing with the specific remark in question. Nor did they object to the failure to give such an instruction or to the scope and content of the instruction, quoted in the margin, which was given.

Vandergrift and his co-defendants appealed their convictions to this court and were represented by counsel on that appeal. We affirmed and the Supreme Court denied their petitions for certiorari and for rehearing. Wagner v. United States, 9 Cir., 264 F.2d 524; 360 U.S. 936, 79 S. Ct. 1459, 3 L.Ed.2d 1548; 361 U.S. 857, 80 S.Ct. 481, 4 L.Ed.2d 97.

On that appeal it was strenuously argued that the trial court erred in refusing to provide the information concerning jurors which had been requested.² The questioned remark was quoted in the statement of facts set out in the opening brief on the prior appeal, as background for that argument. But no contention was made that the remark itself was prejudicial and no error was specified with regard to it. As indicated in our opinion in Wagner v. United States, 9 Cir., 264 F.2d 524, 527-528, no contention was made on that appeal that the jury selected to try the case was biased or partial in any respect.

Under the described circumstances we affirm without reaching the question of whether the challenged remark of the trial judge constituted error. If it was error, the matter could have been and should have been raised on appeal, and therefore may not be raised for the first time in this collateral attack on the judgment.

Appellant categorizes his point as a constitutional question. He thus seeks to give application to the usual, although not invariable practice of permitting constitutional questions to be raised collaterally even though they could have been raised on direct appeal from the conviction.³

But, in determining whether a constitutional question is presented, we are not controlled by the label appellant attaches to his point. We must exercise our own judgment, deciding...