Walker v. United States

• Decision Date: 18 July 1963
• Docket Number: No. 17547.,17547.
• Citation: 322 F.2d 434,116 US App. DC 221
• Parties: Leroy WALKER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

116 US App. DC 221, 322 F.2d 434 (1963)

Leroy WALKER, Appellant, v. UNITED STATES of America, Appellee.

No. 17547.

United States Court of Appeals District of Columbia Circuit.

Argued May 2, 1963.

Decided July 18, 1963.

Mr. James Heinz, Washington, D. C., for appellant.

Mr. Tim Murphy, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker, Asst. U. S. Atty., and Arthur J. McLaughlin, Asst. U. S. Atty., at the time the brief was filed, were on the brief, for appellee.

Before EDGERTON, Senior Circuit Judge, and WILBUR K. MILLER and BASTIAN, Circuit Judges.

WILBUR K. MILLER, Circuit Judge.

An indictment filed October 3, 1960, charged that the appellant, Leroy Walker, and three others — James M. Walker, Charlie M. Walker and Joseph E. Quarles — on or about August 13, 1960, robbed a filling station attendant of $333 in money and a change carrier worth $5.00.

On November 3, 1960, Quarles, who had then begun serving a ten-year sentence for robbery imposed by a court in Maryland, entered a plea of guilty. Later he became a witness for the Government in the trial of the three Walkers, who had pleaded not guilty. He testified that he and the appellant Leroy committed the armed robbery, which he described in detail, and maintained that James M. Walker and Charles M. Walker had no part in it. Other evidence for the prosecution tended to show, however, that all four indictees had participated in the commission of the crime: police officers testified that James and Charlie made self-incriminatory statements to them.

After the jury retired to consider of its verdict, the three Walkers, who were on bond, and their counsel left the courtroom. When they returned later in the day, the judge said to them in open court:

"Gentlemen, in the Walker Case I received a note from the jury requesting as to whether or not the man who turned state\'s evidence, Quarles, had connected James and Charles Walker with the crime.

"I had the Reporter read to me all of Quarles\' testimony and he has not in his testimony connected James and Charles with the crime. And seemingly the only testimony that has had anything to do with them in their connection with it were the admissions alleged by the detectives. I have so notified the jury."

Leroy Walker took no exception and did not in any way indicate objection to the court's action. Thereafter the jury returned a verdict finding Leroy guilty. It disagreed, however, as to his co-defendants, James and Charlie.

Leroy appeals. He urges, inter alia, that the trial judge committed reversible error when, in Leroy's absence, he answered the jury's question as to whether Quarles had implicated his co-defendants, James Walker and Charlie Walker. He does not argue or suggest that he was prejudiced thereby, but simply says the error was "so gross that it is not necessary to show that it was prejudicial," and cites Fina v. United States¹ in support of that proposition.

Criminal Rule 43 requires the presence of the defendant "at every stage of the trial." This prohibits the judge from communicating with the jury in any way, either before or after it has begun to deliberate, when the defendant is absent. Consequently, the trial judge erred when he answered the jury's inquiry when the appellant was not present. Rule 43 is a salutary provision which trial judges should scrupulously observe, no matter how remote the possibility of prejudice may seem.

Such an error does not require reversal, however, when the record shows with reasonable certainty that it did not prejudice the defendant's substantial rights. Speaking of a similar infraction of Rule 43, Judge Learned Hand said:²

"* * * But, like other rules for the conduct of trials, it is not an end in itself; and, while lapses should be closely scrutinized, when it appears with certainty that no harm has been done, it would be the merest pedantry to insist upon procedural regularity. Cases cited. There cannot be the slightest doubt here that the informality — for, at most, it was no more — did not prejudice the accused."

This sensible statement was in obedience to, and was required by, Criminal Rule 52(a): "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded."

Practically all cases holding that a violation of Rule 43 is reversible error involved situations where it was decided there was resultant prejudice or a reasonable possibility thereof.³ To be sure, the Fina case, supra, cited by the appellant, held otherwise, but in the later case of Jones v. United States⁴ the Tenth Circuit abandoned its Fina ruling that such an incident amounts to an unconstitutional denial of a public trial which requires reversal, even though not prejudicial. It said:

"* * * We can let stand no conviction where the defendant was not present at all stages of the proceedings unless the record completely negatives any reasonable possibility of prejudice arising from such error. Our review of the record here convinces us that there is no reasonable possibility of prejudice to appellant in the present case."

Many courts, both state and federal, have dealt with the problem presented by a trial judge's communication with the jury in the defendant's absence and are substantially in accord. A most succinct and satisfactory statement of the governing principles was made by the Maryland Court of Appeals in La Guardia v. State:⁵

"* * * If the record shows affirmatively that the appellant was prejudiced by an improper communication of the judge with the jury, there is reversible error; and also * * * if the record shows error by such communication, but does not show whether or not the error was prejudicial, it is presumed to be prejudicial and requires a reversal. Little v. United States, 10 Cir., 73 F.2d 861, 96 A.L.R. 889; Ah Fook Chang v. United States, 9 Cir., 91 F.2d 805, 810. On the other hand, if the record shows affirmatively that the communication had no `tendency to influence the verdict\' (Duffy v. State, 151 Md. 456, 474, 135 A. 189, 195), the judge\'s impropriety in communicating with the jury out of the presence of the defendant does not require a reversal. Dodge v. United States, 2 Cir., 258 F. 300, 7 A.L.R. 1510; Outlaw v. United States, 5 Cir., 81 F.2d 805. * * *"

Federal cases decided since this Maryland decision are to the same effect as those to which it refers.

Accordingly we hold that the trial judge's impropriety in communicating with the jury out of the presence of Leroy Walker does not require reversal if the record affirmatively shows the communication had no tendency to influence the verdict against him. In the language of the Tenth Circuit's Jones case, supra, we cannot let Leroy's conviction stand "unless the record completely negatives any reasonable possibility of prejudice" to him arising from the judge's error.

The record clearly shows the jury's question and the judge's answer had nothing whatever to do with the case against Leroy Walker or with his defense. As the Tenth Circuit said in the Jones case, supra, "Appellant's presence would have been no aid to his defense and it is apparent that he suffered no prejudice." This is clear from the trial judge's statement to counsel in which he described the note he received from the jury and his answer to it — a statement we have already quoted and which we have no reason to believe is either inaccurate or incomplete. The jury simply wanted to be reminded whether Quarles, who indubitably had implicated Leroy Walker, had connected James and Charlie with the crime. The judge correctly answered that Quarles had not implicated James and Charlie. Thereupon, the jury found Leroy guilty but disagreed as to his co-defendants.

Thus, the jury's question and the judge's answer did not concern Leroy in any way. The question was not asked as to him⁶ and the answer made no reference to him. He took no exception to the court's action when it was explained to him, and would have had no reason to except had he been present. His presence would not have aided his defense. The record conclusively shows he suffered no prejudice. Appellant's argument that the incident complained of, in which he had not the slightest interest, unconstitutionally deprived him of a public trial is unrealistic in the extreme. It exhalts technicality over practicality, theory over actuality.

The other reasons for reversal relied on by the appellant seem to us to lack substance. His guilt was amply proved and his conviction must stand.

Affirmed.

EDGERTON, Senior Circuit Judge (dissenting).

In Shields v. United States, 273 U.S. 583, 47 S.Ct. 478, 71 L.Ed. 787 (1927), a prosecution for conspiracy to violate the Prohibition Act, counsel for Shields and the prosecuting attorney jointly asked the judge in chambers, after the jury retired, to hold the jury in deliberation until it reached a verdict. The jury afterwards sent to the judge in chambers a note saying it found certain defendants guilty and certain others not guilty but was "unable to agree" as to Shields and two others. The judge in chambers then sent the following note to the jury: "The jury will have to find also whether Shields and the two others are guilty or not guilty." 273 U.S. at 584, 47 S.Ct. 478, 71 L.Ed. 787.

Shields was convicted. The Court of Appeals for the Third Circuit affirmed the conviction but the Solicitor General found no "satisfactory ground for opposing the petition for a writ of certiorari . . ." 273 U.S. at 587, 47 S. Ct. at 479, 71 L.Ed. 787. The Supreme Court granted certiorari and reversed the conviction.

The Supreme Court said: "These communications were not made in open court, and neither the petitioner Shields nor his counsel was present, nor were they advised of them. * * * The joint request to the court * * * did not include any agreement that the court should receive a communication from the jury and answer it without giving the defendant and his counsel an opportunity...