United States v. Billie A. Bryant, United States of America v. Benjamin Murdock , 471 F.2d 1040 ( 1973 )

PER CURIAM:

In an indictment of four counts, appellant was charged with two counts of first degree murder of an agent of the Federal Bureau of Investigation, in violation of 18 U.S.C. §§ 1111(a) and 1114 (1970) (Counts 1 and 3), and two counts of first degree murder in violation of 22 D.C.Code § 2401 (1967) (Counts 2 and 4). The Government elected to proceed only on the District of Columbia Code offenses, and appellant was found guilty as charged on both counts. The jury being unable to agree on punishment, the trial judge imposed a consecutive sentence of life imprisonment on each count.

The Government’s evidence showed that at the time of the twin murders appellant was an escapee from Lorton Reformatory, where he had been serving a sentence of 18 to 54 years for bank robbery. The Government’s evidence also showed that less than an hour before the crimes in suit here appellant had robbed a bank in Oxon Hill, Maryland. As a result of the bank robbery, three FBI agents went to the home of appellant’s wife in order to determine his whereabouts. Appellant came to the door and advised the agents that Mrs. Bryant was not at home. In answer to another question, he also denied that he was Mr. Bryant, stating that his name was “Freeman.” When one of the agents asked permission to enter the apartment to talk to him, appellant pulled his gun and began firing, killing two of the three agents. Appellant was later arrested in the evening of the same day concealed in an attic, at which time he had in his possession a fully loaded .38 caliber police special revolver. Ballistic tests showed that bullets recovered from the bodies of the agents had been fired from this gun.

On appeal Bryant argues that his conviction must be reversed because (1) the District Court tried the case in a district saturated with publicity prejudicial to appellant after the court had granted a motion for change of venue; (2) the District Court denied appellant the right to interrogate prospective jurors individually on voir dire; (3) appellant was tried on an indictment after the District Court had dismissed all counts in the indictment; (4) the court drew a jury from a group of jurors which had been misled or contaminated by the prejudicial remark of another judge; (5) the court permitted the evidence of prior crimes to be given to the jury; (6) the court refused to give the jury a proposed instruction regarding appellant’s mental condition as precluding premeditation; and (7) the court instructed the jury that premeditation might be instantaneous.

We affirm.

I

Appellant’s argument based on alleged prejudicial publicity arises out of the fact that the court initially granted his unopposed motion for change of venue and then allowed appellant to withdraw his motion, again with the Government consenting. Appellant’s reason for withdrawing his motion was that one of his counsel, employed by the Legal Aid Agency here, could not participate in his trial outside the District of Columbia. Appellant’s counsel also suggested his disapproval of the transfer to Richmond, appellant as well as his principal counsel being black. Appellant argues that it was reversible error for the trial court “to make the transfer of the case contingent on defendant’s relinquishment of his right to effective counsel under the Sixth Amendment to the Constitution,” and “for the District Court to make transfer of the case contingent on acceptance of Richmond, Virginia, as the venue for the trial.”

Appellant’s Sixth Amendment argument is difficult to understand. As indicated, one of appellant’s counsel, Mr. Christensen, was from the Legal Aid Agency and under the law could not follow the case outside the District. 2 D.C. Code §§ 2201-2210 (1967). Consequently, it would have been necessary to appoint counsel to replace him in the transferee district. But this point was never raised because appellant insisted on the services of Mr. Christensen. According to appellant’s chief trial counsel Mr. Christensen was “invaluable to the defense.” (June 27 Transcript 54.) The record confirms, to some extent at least, this evaluation because Mr. Christensen had been in the case longer than appellant’s chief counsel and had taken the lead in preparing and presenting appellant’s insanity defense, which under the facts of this case was the only realistic defense he had. Faced with the prospect of losing the services of Mr. Christensen, appellant chose to have his case tried in the District of Columbia where his chief counsel, in support of his motion to withdraw the motion for change of venue, assured the trial court that appellant could get a fair trial.

The putative transfer to Richmond is a little more difficult to explain. Both appellant and his chief counsel were black. Appellant was a Black Muslim, charged with murdering two FBI agents. Given the racial history surrounding the Richmond area, it does seem that the trial court should have explored other places.¹ But our reading of the record assures us that the crucial consideration leading appellant’s chief counsel to withdraw appellant’s motion was that he really did not want the trial outside the District without Mr. Christensen. (June 27 Tr. 54.)

We note that while appellant did not obtain the acquittal for which he hoped, his trial was solely concerned with the issue of insanity. The Legal Aid Agency of the District of Columbia has made a special study of and garnered special experience concerning this defense. Judges in this jurisdiction have been especially concerned with the rights of an accused presenting an insanity defense. For example, the District Judge who had been assigned to this case, and from whose judgment the appeal has been taken, was one known for his readiness to provide the bifurcated trials contemplated by our opinion in Holmes v. United States, 124 U.S.App.D.C. 152, 363 F.2d 281 (1966), and he did in fact give defense counsel the option to have a bifurcated trial, an option which defense counsel first accepted and ultimately declined.

We see no substantial basis for upsetting the conviction because of the rulings on transfer of venue.

II

Appellant asserts that his conviction must be reversed “because the District Court denied him the right to interrogate prospective jurors individually on voir dire.” Although this argument might be construed as an insistence on appellant’s part that his counsel should have been permitted to interrogate prospective jurors individually, in brief and in oral argument appellant’s complaint is aimed at the manner and method by which the trial judge conducted the voir dire, as he had a right to do under Rule 24(a), Fed.R.Crim.P. Appellant is particularly disturbed by the en masse examination conducted by the court rather than individual interrogation of each prospective juror. Appellant also contends that the trial court announced its decision respecting the conduct of the voir dire before his counsel had opportunity to state his position.

Some time prior to trial, the court advised counsel for both sides that it would conduct the voir dire examination of the jury, and instructed counsel to submit to the court one week in advance of trial any questions they wished to be addressed to prospective jurors. In a further memorandum distributed three days before the trial began, the court advised counsel as follows:

“Individual voir dire of each juror is impractical, unnecessary and not in the interests of justice. The jury, when chosen, will be sequestered. Selection of a jury may well involve a prospective panel of 150 or more. Individual questioning of each member of the panel will require several days. Publicity will issue and there is no feásible way of sequestering the panel while the selection process takes place.

In the event particular responses of individual jurors suggest to the Court further individual interrogation of the juror, this can be done at the bench in accordance with the long established practice in this jurisdiction. The state court practice of individual interrogation has recently been illustrated in the Ray and Sirhan cases, and not only proved time-consuming but tended to personalize jurors under the glare of publicity.in a fashion that is inconsistent with the dignity of federal court practice. Trial by voir dire is offensive and certainly unsuited to this case. The ABA-recommended standards do not have the thrust defendant’s cited excerpts suggests. The Court will develop techniques designed to deal fairly with the problems as they arise, tailoring procedures to the exigencies of this trial. This is the procedure encouraged by the Court of Appeals and entirely fitting in this instance. United States v. Ridley [134 U.S.App.D.C. 79, 412 F.2d 1126 (1969)]. Cf., Silverthorne v. United States, 400 F.2d 627, 635-640 (9th Cir. 1968); Rizzo v. United States, 304 F.2d 810 (8th Cir. 1962).”

At a pretrial conference which followed the distribution of the above memorandum, the court stated that it was quite willing to hear counsel’s argument for alteration of the proposed voir dire procedure and to make any changes therein deemed advisable. Defense counsel stated at this time that he was not requesting the court to interrogate each juror individually with respect to every question, but rather that an individual examination be conducted in certain areas. The judge indicated that he would proceed according to his memorandum, but that counsel could follow the proceedings and make any further suggestions as they went along.

The voir dire followed the procedure outlined in the memorandum. Trial counsel raised only one objection to the procedure as it went along, and appellate counsel has not seen fit to urge that objection on this appeal. After the jury was impanelled, trial counsel for appellant stated:

“Your Honor, may I just say on the record that I want to express my appreciation to the Court for an expedited manner in which this voir dire was handled, and I believe that the Court covered, in essence, much of what we requested, outside of the scope of those things we had objection to. I appreciate the manner in which it was conducted.”

(Trial Tr. 220.)

It is, of course, clear that the method and manner of conducting a voir dire are left to the discretion of the trial judge and that ordinarily, unless specific objection is made at the time, voir dire issues raised on appeal will not be noticed. Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931). The court here was concerned that extensive voir dire examination would extend over a period of several days and that the publicity resulting therefrom might be prejudicial to a fair trial. Although the jury when chosen was to be sequestered, sequestering the whole venire during the jury selection process presented substantial problems. Consequently, the trial court was understandably concerned to complete the impanelling of the jury in one day, if feasible. It did so by asking the usual, unexceptional, general questions of the jurors en masse and then calling the prospective jurors who had made an affirmative response to the questions to the bench for further interrogation outside the hearing of the other veniremen. Thus while all the talesmen in the courtroom knew which of their number had responded affirmatively to one or more of the court’s general questions, they did not hear the detailed interrogation of those prospective jurors.

This court is of the view that voir dire examinations should be conducted in accordance with the recommendations of the American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Fair Trial and Free Press § 3.4(a) (1968). However, despite appellant’s contrary-suggestion, the District Court’s procedure here was generally in accord with those recommendations, and under the circumstances presented by this case we see no prejudicial error.

Appellant cites various authorities² for his position that individual interrogation of veniremen is required. But nothing in those cases suggests that individual interrogation is required before it becomes known that a talesman has had some previous exposure to the case.³ All of appellant’s authorities insist that once the fact of exposure is disclosed, the details must be developed out of the hearing of the other veniremen. That procedure was followed in this case. In most of appellant’s cases the content of the voir dire was challenged. Here appellant’s counsel was invited to suggest additional questions, and he had none. Moreover, and most important, no prejudice from the procedure used is shown. Baker v. United States, 131 U.S.App.D.C. 7, 401 F.2d 958 (1968).

III

Appellant’s attack on the indictment on Gaither ⁴ grounds is without merit. The indictment here was returned March 5, 1969, and the Gaither holding was prospective only from April 8, 1969. 134 U.S.App.D.C. at 175, 413 F.2d at 1082. Appellant also suggests that he was tried on an indictment after all the counts had been dismissed by the District Court. As indicated earlier, the indictment here originally consisted of two counts of murder under the District of Columbia Code and two under Title 18, United States Code. When the District Court determined that the case was to be tried outside the District, it stated: “The D.C. Code counts (2 and 4) are not transferable and must be dismissed.” Appellant was tried, of course, in the District of Columbia on the D.C. Code counts, the Title 18 counts being dismissed on the Government’s election.

Although the record is unclear as to the actual intention of the District Court concerning the dismissal of Counts 2 and 4, the fact is that under Rule 48(b), Fed.R.Crim.P., the District Court was without authority to dismiss the counts sua sponte. Moreover, the court’s statement can be interpreted as indicating its opinion that dismissal papers should be prepared by the United States Attorney. None were, nor did the Government move orally for dismissal of the counts.

After the federal counts were dismissed, with defense counsel’s approval and to protect the defendant from prejudice, the court had typed an “indictment” including only the D.C. Code counts for use before the jury. Appellant now suggests this was an invalid amendment of the original indictment. The original indictment, however, was never amended. It remains as the only indictment in this case. The typed “indictment” for jury use in no way replaced or amended it. The use of such an “indictment” in the circumstances of this case was in the interest of justice and in appellant’s own interest.

IV

Appellant’s remaining issues may be quickly disposed of. As indicated, to prove intent evidence of appellant’s fugitive status and the fact that within the hour before the murders he had robbed a bank was admitted. Counsel concedes this evidence was probative, but suggests that its probative value is outweighed by .its potential prejudice. Obviously the evidence was both highly probative and highly prejudicial. On this record we are unable to say that the balance the trial court struck was wrong. See C. McCormick, Evidence § 157 at 332 (1954).

On the issue of diminished responsibility, this court en banc has rejected that doctrine. Stewart v. United States, 107 U.S.App.D.C. 159, 275 F.2d 617 (1960), reversed on other grounds, 366 U.S. 1, 81 S.Ct. 941, 6 L.Ed.2d 84 (1961). The Supreme Court has affirmed another judgment of this court rejecting the doctrine, indicating the matter was one to be determined by the local court. Fisher v. United States, 328 U.S. 463, 476-477, 66 S.Ct. 1318, 90 L.Ed. 1382 (1940). Under the circumstances any proposed change in this court’s position on this doctrine should be addressed to the court en banc. See also Stewart v. United States, 129 U.S.App.D.C. 303, 305, 394 F.2d 778, 780 (1968).⁵

Finally, appellant challenges the trial court’s instructions on the issues of premeditation and deliberation. Again we believe independent consideration by this panel of the instruction given by the trial judge in this case is effectively precluded by this court’s opinion in Austin v. United States, 127 U.S.App.D.C. 180, 186 and n.12, 382 F.2d 129, 135 and n.12 (1967), and by Fisher v. United States, supra. Both those eases approve the premeditation and deliberation instruction given by the trial court in Fisher, which' instruction is virtually verbatim the instruction in this case.

In sum, we believe the record shows that appellant had a fair trial. He was ably represented at both the trial and appellate levels. The evidence of guilt is overwhelming. Appellant’s only real defense on trial was insanity, and the record is such that that issue is no? even raised on appeal. Under the circumstances the judgment appealed from must be and is

Affirmed.

1 . Thus, Philadelphia is almost equidistant with Richmond from Washington. The trial judge had not inquired as to the condition of the court calendar in Richmond.

2 . Silverthorne v. United States, 9 Cir., 400 F.2d 627 (1968) ; Patriarca v. United States, 1 Cir., 402 F.2d 314 (1968) ; United States v. Marcello, E.D.La., 280 F.Supp. 510 (1968).

3 . It should be noted that the general questions addressed to the venire and challenged here required yes or no answers concerning the prospective jurors’ prior exposure to this case. We express no opinion as to possible prejudice from general questions in other areas addressed to the venire requiring yes or no answers in the presence of the other prospective jurors.

4 . Gaither v. United States, 134 U.S.App.D.C. 154, 413 F.2d 1061 (1969).

5 . Chief Judge Bazelon’s dissent to our ruling on diminished responsibility is based on the dissenting part of his opinion in United States v. Alexander and Murdock, 152 U.S.App.D.C.-, 471 F.2d 923, 948-952 (23,190, decided today). The court in Murdoch also held that any reconsideration of the en banc opinion in Stewart should be addressed to the court en banc.