United States v. Garnett Johnnie Jones

WINTER, Circuit Judge:

Convicted of bank robbery, Garnett Johnnie Jones appeals, assigning as reversible error the limited scope of the district court’s voir dire of prospective jurors, its refusal to excuse two veniremen for cause, its instructions concerning the testimony of a witness who played a part in the crime and a witness who admitted to using drugs, and the absence of black males on the jury which rendered the verdict. We see no merit in any of these contentions, and we affirm.

I.

At trial, the evidence showed that a bank was robbed by Norman Scott and Jerry Rowell and that Jones drove the getaway car. On the morning of the robbery, Scott, Rowell and Jones met at the home of Ms. Annie Jefferson, a former paramour of Jones. They remained there for about an hour talking and drinking coffee, but according to the testimony there was no mention to her of a proposed bank robbery or any other criminal activity. When the three left, Scott and Rowell got into Jones’ car. Jones lagged behind and he told Jefferson that the three planned to rob a bank. He then also left, joined the others in his automobile and drove away.

In the time that they were gone, the bank was robbed.

The three returned within the hour and, without revealing what they had done, asked Ms. Jefferson for the use of her basement. There, Rowell testified, they divided the money and then only Rowell and Scott left the premises. Jones left a few minutes later, but Ms. Jefferson first complied with his request to look outside to see if there were any police. When Jones departed, he gave Jefferson $100 in cash.

In the jury selection process, the district court interrogated each venireman as to whether he, or any member of his family, had ever been an employee of a bank and also whether he, or a member of his family, had been a victim of an armed robbery. Notwithstanding defendant’s request and subsequent objection, the district court declined to include the phrase “or any crime” in the latter question. In response to the questions, one venireman said that his wife was an employee of a savings and loan association (not the bank robbed in the instant case) but that she had never been robbed. A second venireman said that he had a daughter-in-law who was an employee of another bank. He knew that she had been the victim of a bank robbery but was not harmed, and he stated that he had never discussed the matter with her. The district court probed the connections with additional questions and both veniremen implied that there was nothing in the relationships which would make it difficult or impossible for them to render a fair and impartial verdict if selected to sit as a member of the jury in the instant case. The district court denied Jones’ challenge for cause to both veniremen, and defendant was forced to expend two peremptory challenges to exclude them from the jury.

When the case was submitted to the jury, defendant requested that the jury be instructed that Ms. Jefferson could be considered an accomplice and that, accordingly, *1007her testimony should be scrutinized carefully and viewed with greater than ordinary caution. The district court declined to give this charge, although it gave general instructions as to credibility. The defendant also requested that the district court give the addict instruction with respect to the testimony of Jerry Rowell who pleaded guilty and testified as to defendant’s participation in the robbery. See United States v. Butler, 156 U.S.App.D.C. 356, 481 F.2d 531 (D.C. Cir. 1973). The district court declined the request.

Although the petit jury which convicted defendant had three black females as members, its membership included no black males. Defendant, incidentally, sought unsuccessfully at one point to strike for cause a black male venireman, but he was not on the jury selected to serve.

II.

We do not think that there was error (a) in the district court’s declining to interrogate prospective jurors as to whether they or a relative had been the victim of “any crime,” or (b) in declining to strike for cause the venireman whose wife was a bank employee or the one whose daughter-in-law had been the victim of a bank robbery.

A. It is well established that a trial court may exercise broad discretion in conducting the voir dire of the jury, and particularly in phrasing the questions to be asked. See, e. g., Ristaino v. Ross, 424 U.S. 589, 594-95, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976); United States v. Johnson, 527 F.2d 1104, 1107 (4 Cir. 1975). The fact that a juror or his relative has been the victim of some crime, unrelated to the offense being tried, is, we think, only minimally relevant to the question of that juror’s impartiality. Indeed, if the mere fact that a juror or his relative had been the victim of some crime unrelated to that being tried constituted grounds for discharge, it would become difficult, if not impossible, to assemble a jury panel. In the instant case, defendant does not suggest that any particular juror was actually subject to an influence adversely affecting his impartiality. As a consequence, it was not an abuse of discretion to refuse to ask the prospective jurors whether they or any of their relatives had been the victims of any crime.

In United States v. Poole, 450 F.2d 1082 (3 Cir. 1971), upon which defendant relies, the court overturned a conviction for armed bank robbery because the trial judge refused to inquire of the jurors: “Have you or any member of your family ever been the victim of a robbery or other crime?” However, the defendant in Poole was concerned specifically with the prejudice of a prospective juror who had once been a robbery victim. Id. at 1083. The absence of the first half of the question was fatal in Poole, and the cases it relied upon all involved prejudices arising from experiences with crimes similar to the ones at issue. Therefore, neither Poole nor the cases cited therein stand for the proposition that a trial court must ask whether the proposed jurors have had previous experience with any crime whatsoever.

B. In considering the district court’s declining to strike the two jurors, we begin with the test articulated in Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642 — 43, 6 L.Ed.2d 751 (1961):

To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a' prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. (Emphasis added.)

The burden of proving partiality is upon the challenger. Id. Moreover, findings of impartiality should be set aside only where prejudice is “manifest.” Id. at 724, 81 S.Ct. 1639.

There is some precedent suggesting that a juror who is related to a person holding a position similar to that held by the victim of the crime being charged must be excused for cause. See United States v. Poole, 450 F.2d 1082, 1084-85 (3 Cir. 1971) (bank tell*1008er); Sims v. United States, 132 U.S.App.D.C. 111, 114 n. 5, 405 F.2d 1381, 1384 n. 5 (D.C. Cir. 1968) (taxicab driver). However, what little Poole and Sims had to say on the subject was pure dictum. And there exists more persuasive authority to the contrary. United States v. Caldwell, 178 U.S.App.D.C. 20, 34, 543 F.2d 1333, 1347 (D.C. Cir. 1975) acknowledged the statement in Sims, yet found no reason to bar a son and a father-in-law of police officers from serving as jurors in a case arising out of the killing of a policeman. See also Mikus v. United States, 433 F.2d 719, 723-24 (2 Cir. 1970) (bank chairman).

The situation is more compelling when a juror is closely associated with a victim of the same type of offense as that being tried. See Virgin Islands v. Bodle, 427 F.2d 532 (3 Cir. 1970) (rape); Jackson v. United States, 129 U.S.App.D.C. 392, 394-395, 395 F.2d 615, 617-18 (D.C. Cir. 1968) (murder of lover by lover’s husband). As the court noted in Mikus, 433 F.2d at 723, Jackson involved a striking similarity between the bizarre personal experiences of the juror and the facts of the case at hand, and deliberate non-disclosure by the juror. See also Caldwell, supra, 178 U.S.App.D.C. at 34, 543 F.2d at 1347 (slaying of police officer).

Here one juror was the father-in-law of a bank teller who had been the victim of a robbery within the preceding year. Yet, the juror in this case, unlike those in Jackson and Bodle, disclosed the basis for any potential prejudice during voir dire. Furthermore, he assured the court that his awareness of the experience of his daughter-in-law would not affect his impartiality. We decline to establish a per se rule of disqualification where a juror is related to a victim of a similar crime.

In short, we think the standards set forth in Irvin were fully satisfied. Neither venireman had a connection with the case that required his disqualification and both stated that they could put aside any preconceptions they may have had as the result of the experiences of their respective relations. Defendant has not shown that their prejudice was so “manifest” as to require reversal of the district court’s finding of impartiality.

III.

Nor do we see error in the instructions which were refused.

A. Ms. Jefferson was not an accomplice as that term is generally used. See United States v. Simmons, 503 F.2d 831, 837 (5 Cir. 1974). She did not participate in the planning or execution of the robbery. While she was told, after she first afforded hospitality, that a robbery would take place, she was not told that the robbery had occurred when she readmitted the robbers to use her basement. It may well be that she could have been prosecuted as an accessory after the fact, see 18 U.S.C. § 3, but we see no basis on which she could be held to have committed bank robbery or aided and abetted the commission of bank robbery, see 18 U.S.C. § 2. Thus, Ms. Jefferson was not an accomplice and the refusal to give the accomplice instruction as to her testimony was not error.

B. According to the evidence adduced at trial, Jerry Rowell was not an addict, thus there was no foundation for the requested instruction. He testified that “off and on” he had been a regular user of heroin, but that he had not used narcotics on the day he appeared in court. Indeed on that day he had been in custody for five months and had just previously been sentenced to a term of twelve years for his part in the robbery. The rationale of the “addict” instruction, i. e., that an addict’s desire to cooperate with the government because of his fear of arrest and subsequent withdrawal pangs and his desire to avoid recrimination by dealers in the drug chain will produce unreliable testimony, was therefore inapplicable to Rowell’s situation. See Devitt and Blackman, Federal Jury Practice and Instructions, 3rd Ed., § 17.03.

IV.

A criminal defendant has no right to be tried by a jury containing mem*1009bers of his particular race or sex, so long as such members are not deliberately excluded. See, e. g., Swain v. Alabama, 380 U.S. 202, 203-04, 85 S.Ct. 824, 13 L.Ed.2d 759 (1964). The burden of establishing a prima facie case of purposeful discrimination rests upon the defendant. Id. Here defendant makes no attempt to establish such a case. In fact, it appears from the admission of defendant and from the list of jurors in the record that at least three black females and three nonblack males served on defendant’s jury. His complaint about the jury’s composition is totally devoid of merit.

AFFIRMED.