UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1718
UNITED STATES OF AMERICA,
Appellee,
v.
MILLER M. BULLARD,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
Before
Selya and Boudin, Circuit Judges,
and Carter,* District Judge.
Warren R. Thompson, by Appointment of the Court, for appellant.
Kevin J. Cloherty, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, was on brief for the United
States.
October 20, 1994
*Of the District of Maine, sitting by designation.
BOUDIN, Circuit Judge. On July 20, 1992, an armed man
held up the Baybank branch at 285 Huntington Avenue in
Boston, and escaped with approximately $421. Shortly
thereafter, law enforcement agents arrested defendant-
appellant Miller M. Bullard, who was then charged with one
count of armed robbery of a federally insured depository
institution, 18 U.S.C. 2213(a), (d). A jury convicted
Bullard on October 22, 1992. He has appealed his conviction.
We affirm.
Bullard's trial lasted three days, and for a significant
portion of that time, he represented himself. The district
court had originally appointed counsel for him, but he
objected to that appointment, and the court granted his
motion to proceed pro se. The court also appointed Owen
Walker of the federal public defender's office to act as
standby counsel. Walker sat with Bullard at the defense
table throughout trial. Walker presented opening and closing
arguments, and he also cross-examined the key government
witness.
Bullard's central claims of error concern issues not
raised at trial. With one possible qualification, we review
these claims for plain error, which encompasses only those
errors that are both "plain" and involve either a miscarriage
of justice or deviations that seriously impair the
fundamental fairness and basic integrity of the trial
-2-
proceedings. United States v. Olano, 113 S. Ct. 1770 (1993);
United States v. Griffin, 818 F.2d 97, 100 (1st Cir.), cert.
denied, 484 U.S. 844 (1987).
Bullard first contends that even though he was
representing himself, he was left out of a conference between
counsel and the judge concerning the possible inattentiveness
of one juror, thus violating his right to pro se
representation. During the trial, the district judge noticed
that on one day an individual juror appeared to be somewhat
less attentive than normal. When the jurors were excused,
the district judge asked the juror in question to remain in
the courtroom and then questioned the juror, in the presence
of the prosecutor and Walker.
The juror acknowledged that the night before, she had
worked a double shift and was somewhat tired, but also
asserted that she was perfectly capable of continuing. The
court then excused the juror from the room and effectively
invited the prosecutor and Walker to object to the juror's
continuation if dissatisfied with her answers. Neither
counsel objected to the juror's continuing. Walker himself
noted that the juror had seemed to be "on the ball."
The record does not reveal whether Bullard was in fact
present during the conference, which was conducted in court.
Bullard now asserts that he was absent for this conference
(his brief cites only to a telephone call between Bullard and
-3-
his appellate counsel). It is possible that the marshal or
court security officer removed Bullard before the juror was
questioned and also possible that some or all of the colloquy
occurred at sidebar. The transcript is silent on these
points.
Since the record is unclear on this factual issue, there
certainly is no "plain" error. Of course, one might argue
that it is unfair to hold this lack of clarity against
Bullard since he himself may not have been aware of the
episode until he reviewed the trial transcript after his
conviction. Still, if the issue were to be properly pressed
on appeal, Bullard or his appellate counsel ought at least
have asked the district court to supplement the record. See
Fed. R. App. P. 10(e) (allowing supplementation of district
court record to correct mistake or omission).
Out of an abundance of caution, we have considered
whether Bullard was actually prejudiced, even assuming that
he was absent during the episode. Of course, a defendant is
normally entitled to be present during a court proceeding,
and even more so when acting pro se. But here Bullard was at
least represented by standby counsel at the proceeding in
question. Given that the record does not show Bullard was
absent, we think that it goes as far as required, and
arguably beyond, to ask whether his possible absence has
created demonstrable or likely prejudice.
-4-
Here, we see no prejudice at all. A sharp-eyed trial
judge, commendably attentive, noticed some signs that a juror
might not have been fully alert. Sua sponte he questioned
the juror who denied any illness, explained that she had had
a late night, and in substance asserted her wish to continue.
Probably, the attention of an average juror, perhaps all
jurors, drifts at some point during a trial. The trial
judge, who had seen the juror's actions, felt no need to
press for or order her removal; and neither counsel asked for
it.
There is nothing to show that the juror missed crucial
evidence or exhibited serious or prolonged inattention;
Bullard says otherwise in his brief but provides nothing to
support the assertion. The evidence against Bullard, which
we need not describe in detail, was substantial; it included
an eye witness identification of him as the bank robber, made
by a teller who had been standing in the teller booth next to
the one robbed. Any notion that Bullard was convicted
because the juror in question was not excused is highly
implausible.
Bullard's other contentions relate to a brief encounter
with a police officer before booking. Prior to Bullard's
initial booking photograph, Detective Carroll of the Boston
Police Department took a picture of him because Carroll had
noticed at the arrest that Bullard wore a baseball hat with
-5-
the brim cocked up--a style that Carroll felt was unusual and
one depicted in the photographs derived from the film in the
bank surveillance camera. Bullard refused to put his hat on
when Carroll asked him to, but then relented and Bullard's
photograph was taken with his hat on.
During Carroll's trial testimony, he mentioned that
Bullard had refused to put his hat on, and Bullard now
alleges that such testimony violated his right against self-
incrimination. The prosecutor also alluded to Bullard's
refusal during her closing argument. In addition, before
trial the prosecutor told the court that she had no
statements of the defendant to turn over in discovery;
Bullard now alleges that this was untrue (because his refusal
was a statement) and constituted a violation of discovery
obligations and misconduct by the prosecutor.
None of these matters comes anywhere close to plain
error. We start with Bullard's claim that his refusal to put
on a hat was a statement that the prosecutor had to produce
before trial. Bullard's refusal to put on his hat does not
fit under the literal language of Fed. R. Crim. P. 16, which
requires the government to turn over statements only if they
were made in the course of interrogation. The rule has been
so construed by the courts. See, e.g., United States v.
Reeves, 730 F.2d 1189 (8th Cir. 1984). Certainly, the
failure to disclose in advance Carroll's testimony as to the
-6-
refusal does not plainly violate any cited discovery rule or
order.
Bullard also claims that it was misconduct for the
prosecutor to advise the court before trial that "there are
no statements of the defendant" and then to elicit at trial
Bullard's refusal. Actually, it is not clear that Bullard
did express his refusal in words, but there is certainly no
indication of a conscious deception by the prosecutor. If
Bullard was surprised by the detective's testimony and felt
he had been misled, he was free to raise the point at trial
and ask for a brief delay or continuance.
Bullard's self-incrimination claim is similarly
unavailing. Bullard properly does not complain on self-
incrimination grounds about the government's use of the
photograph showing him in his hat. It is well accepted that
a defendant's Fifth Amendment right is not compromised by
such physical evidence; a defendant can be obligated to give
blood, stand in a lineup, provide handwriting examples and
cooperate in other similar fashions. E.g., Schmerber v.
California, 384 U.S. 757 (1966); Gilbert v. California, 388
U.S. 218 (1967). What Bullard appears to argue instead is
that his initial refusal to cooperate by putting on his hat
amounts to using his own words--namely, his refusal to
cooperate--against him as evidence of consciousness of guilt.
The prosecutor did not urge this inference and referred to
-7-
the refusal primarily in connection with an argument that
Bullard and the robber wore their hats in the same way.
Still, the inference is pretty obvious.
In many circumstances, a defendant's refusal to speak
with the police or answer questions is not allowed to be used
against him. The concern is not that the silence or words of
refusal are themselves compelled testimony, for the silence
or words of refusal are not compelled. Rather, the fear is
that using the refusal against the defendant would place
undue and inappropriate pressure upon him to surrender his or
her constitutional right to remain silent. In some cases, an
inference from silence could also be unfair for a different
reason; the Supreme Court has said that a Miranda warning
carries the implication that there is no penalty for silence,
and the defendant may reasonably rely on the assurance.
Doyle v. Ohio, 426 U.S. 610, 618 (1976).
The present case is quite different. Bullard had a
Fifth Amendment right to remain silent but he had no such
right to refuse to don a hat, stand in a lineup, or provide
fingerprints. Since he had no such right, then to draw
inference of guilt from his refusal to cooperate physically
does not place improper pressure on him to surrender a
protected right. Nor does a Miranda warning promise or imply
that a defendant can with impunity refuse to put on a hat.
-8-
Of course, in some situations a refusal to cooperate by
providing physical evidence may be defended because
cooperation would itself reveal the content of the
defendant's mind. See, e.g., Fisher v. United States, 425
U.S. 391, 410 (1976); In re Kave, 760 F.2d 343, 358 (1st Cir.
1985). But this case involves no such danger. As for the
logic of the inference, an inference based on a refusal to
cooperate where cooperation itself can be compelled and would
be expected from an innocent person, is no different than an
inference of guilt based on flight to avoid arrest.
We do not want to be understood as giving blanket
approval to testimony of a defendant's refusal to cooperate
in physical activities. An inference of guilt might be
irrational in some circumstances (e.g., a defendant refusing
to submit to a dangerous operation to recover evidence
against him). There may be a range of other cases where
testimony or comment about a defendant's refusal to cooperate
in physical activities could be unduly prejudicial or
threaten constitutional rights. But no such situation is
apparent here, and there is certainly no plain error.
Affirmed.
-9-