United States v. Bert Lancaster, United States of America v. Derrick Vanlierop

MURNAGHAN, Circuit Judge,

dissenting:

Because I believe that our decisions in United States v. Evans, 917 F.2d 800 (4th Cir.1990), and Rainey v. Conerly, 973 F.2d 321 (4th Cir.1992), require us to remand Appellants’ cases for a new trial, I respectfully dissent. Satisfied with the majority’s recitation of the pertinent facts, I will proceed directly to a discussion of my colleagues’ conclusion that the district court’s failure to ask Appellants’ proposed voir dire question concerning law enforcement officers’ credibility ¹ constituted harmless error.

I.

A.

In Evans, the defendants had been charged with distributing crack cocaine and with aiding and abetting such distribution. 917 F.2d at 802. Because, as in the case at bar, the principal evidence presented against the defendants consisted of the testimony of a law enforcement officer, id., the defendants asked the district court to pose the following question to prospective jurors on voir dire: “Is there anyone who would give special credence and weight to the word of a law enforcement officer simply because of the fact that he occupies that position?” Id. at 806. The district court refused to ask the question. The impaneled jury subsequently found the defendants guilty. Id. at 802.

Upon reviewing the matter on appeal, we held that the district court abused its discretion when it refused to ask the proposed question, that the error was not harmless, and that the defendants were therefore entitled to a new trial. Id. at 805-09. We identified several reasons for our decision.

First, because at the heart of the case lay “a test of credibility” between the defendants and a law enforcement officer, it was crucial that the defendants and the court know if a prospective juror believed that special weight should be given to a law enforcement officer’s testimony simply because of his occupation. Id. at 806. We stated that “[t]he right of the peremptory challenge has long been recognized as one of the most important rights secured to the accused,” id. (citing Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965)), and that, under Swain, “[a] voir dire that has the effect of impairing a defendant’s ability to exercise intelligently his challenges, whether for cause or peremptory, is a ground for reversal, irrespective of prejudice,” id. at 807. We concluded that the question proposed by the defendants “was vital to a fair exercise of peremptory challenges,” id. at 807, and that an affirmative answer to the defendants’ proposed question would have required the district court — if it could not persuade the person through instructions or additional questions to change his or her mind — to excuse the prospective juror for cause, id. at 806.

Second, while the district court’s failure to ask the proposed question might have been cured by a jury instruction specifically dealing with the weight that should be given to the testimony of a law enforcement officer, only a general charge was given with respect to evaluating witnesses’ credibility. Id. at 806-07. Because the district court’s instructions did not include a “very clear ... instruction on this important issue,” we concluded that the general charge did not sufficiently address the issue raised in the proposed question. Id. at 807, 809.

Third, the question “would have taken only a moment” of the district court’s time. Id. at 806.

Finally, we noted that our sister circuits had found that, under circumstances such as those presented in Evans, failure to ask prospective jurors whether a witness’s official status would unduly sway their evaluation of his or her testimony could constitute reversible error. Id. at 807-08 (citing United States v. Baldwin, 607 F.2d 1295, 1298 (9th Cir.1979); Brown v. United States, 338 F.2d 543, 545 (D.C.Cir.1964) (opinion authored by then Circuit Judge Warren Burger)).

In light of all of those considerations, we determined that the defendants in Evans were entitled to a new trial.

B.

In Rainey, a prisoner, Rainey, had brought an action against a prison guard under 42 U.S.C. § 1983, alleging that excessive force had been used against him by the guard. 973 F.2d at 322. Prior to the commencement of the trial, Rainey submitted a list of seventeen questions that he wished the court to ask prospective jurors. Id. at 325. One of the proposed questions was: “Simply because of their status, would any member of the jury panel be predisposed to believe the word of a law enforcement officer or prison guard against that of a prisoner?” Id. at 325 n. 1. The district court refused to ask that question, a jury was impaneled, the trial was conducted, and a verdict was returned in favor of the prison guard. Id. at 323.

Upon reviewing Rainey’s claim on appeal that the district court’s refusal to ask the proposed question was reversible error, we concluded that the issue was “directly controlled by” our decision in Evans. Id. at 325. We noted the following similarities between the two cases: the text of the rejected questions was nearly identical; “the case[s] boiled down to a credibility determination between the testimony of a police officer and that of the [prisoners]”; “no specific jury instruction was given on the weight that should be accorded to the testimony of law enforcement officials, other than a general credibility instruction”; and in neither ease did the prisoners “burden the trial court with an overly long list of proposed voir dire questions.” Id. We therefore reached the following conclusion:

[T]he similarities between this case and Evans are so pronounced that there appears to be no way that a principled distinction can be drawn. Accordingly, we hold that, under the law of this circuit, the district court’s failure to question the jurors as requested by Rainey entitles Rainey to a new trial.

Id.; accord United States v. Amerson, 938 F.2d 116, 118 (8th Cir.1991) (stating that “[w]hen, as here, a case turns on the credibility of law enforcement officers, the district court has a responsibility to ensure the jurors are not predisposed to believe the testimony of the officers is inherently more credible than that of other witnesses”).

II.

The majority in the case at bar rightly concludes that, under Evans and Rainey, we are compelled to conclude that the district court in the case at bar abused its discretion when it refused to ask prospective jurors whether they believed that police officers and corrections officials are more “worthy of belief’ than other members of the community. As in those cases, Appellants here did not burden the district court with a long list of proposed questions: in fact, while the prisoners in Evans and Rainey proposed seventeen questions, Appellants proposed only eight. The gist of the officer-credibility question proposed by Appellants is the same as that of the questions proposed in Evans and Rainey. This case, like those, boiled down to a determination of the comparative credibility of the prisoners and law enforcement personnel. And no jury instruction was given specifically concerning the weight to be given to the testimony of law enforcement officials.

I believe it is equally clear, however, that the district court’s error was not harmless and that Appellants are entitled to a new trial. Indeed, as Chief Judge Ervin, Judge Hamilton, and Senior District Judge Kellam found in Rainey, see 973 F.2d at 325,1 do not believe that any “principled distinction can be drawn” between those cases — in which we held that new trials were warranted — and the case before us today.

As the majority concedes, the testimony— and hence the credibility — of Corporal Staggs was absolutely central to the Government’s case. As the majority further concedes, while the district court asked prospective jurors whether they, their friends, or their relatives had ever worked in a law enforcement capacity, the fact that a similar question had been asked in Evans did not persuade us there that the specific issue of how much weight would be given to a law enforcement officer’s testimony had been sufficiently addressed. See Evans, 917 F.2d at 805, 808. The majority believes, however, that Appellants here were given a sufficient opportunity to conduct a meaningful voir dire. I disagree.

The majority bases its holding, in part, on the fact that the court below asked several prospective jurors follow-up questions concerning their ability to be impartial in light of their close association with law enforcement officials. As we held in Evans, however, questions concerning a potential juror’s work in a law enforcement capacity “do not cover the essential question of increased weight or credence of a police officer’s testimony.” 917 F.2d at 805, 808. That “essential question” is no more addressed by two, or ten, or twenty questions concerning impartiality due to law enforcement affiliations than it is by a single one. The problem we recognized in Evans was one of substance, not repetition.

The majority also relies upon the fact that the court below asked the members of the jury panel whether they knew of any reason whatsoever why it would be difficult for them to be impartial. The majority fails to point out, however, that a similar question had been asked in Evans. In that case, the members of the venire were asked:

Now, considering all of the questions I have already asked you, is there any reason why any one of you could not sit on the jury and render a fair and impartial verdict based upon the evidence presented here in the courtroom and the instructions on the law as will be given you by the court?

917 F.2d at 806. If anything, the final, catchall question posed by the district court in Evans was more pointed, more probing than the catch-all question asked in the case at bar and relied upon by the majority. Yet a new trial was deemed necessary in Evans nevertheless; we should certainly, then, reach the same conclusion here.

The majority also takes some comfort in the district court’s jury instructions concerning the manner in which the jurors could weigh the credibility of witnesses. We held in Evans that a similar general charge did not specifically “tell[ ] the jury how it should weigh the testimony of a police officer.” Id. at 806. Indeed, we even went so far as to state that “a very dear jury instruction on this important issue” was required under the circumstances of that case. Id. at 809 (emphasis added). The fact that the district court in the instant case took a few more sentences to convey substantially the same information does not persuade me that a result different from that reached in Evans is appropriate here. Moreover, the majority curiously emphasizes those portions of the instructions that indicate that “only [the jury] determine[s] the importance that [each witness’s] testimony deserves” and that the jury should determine which witnesses “in [their] opinion [are] worthy of belief.” Far from telling the jury that they were' not automatically to assume that the testimony of a law enforcement officer is more credible than that of an inmate, those emphasized portions of the instructions unambiguously invited the jury to weigh each witness’s credibility in whatever manner they saw fit— even, apparently, if that meant deciding that a corrections official’s testimony is inherently more credible than that of a prisoner.

Finally, the majority notes that Corporal Staggs’s testimony was corroborated by the finding of two shanks in the prison yard, rather than one. Evidence in addition to the in-eourt testimony was apparently introduced by the Government in Evans, too. In fact, in that case, evidence of a far more incriminating nature appears to have been admitted — namely, the post-arrest statements of one of the defendants, in which he confessed to being present at the scene of the alleged crime, to receiving a portion of the drug proceeds, and to selling crack cocaine on other occasions. 917 F.2d at 802-805 (upholding the district court’s denial of the defendants’ motion to suppress those statements). We nevertheless concluded that, because the verdict primarily turned on the jury’s weighing of two competing accounts of relevant events — one offered by a law enforcement officer and the other offered by prisoners — the district court’s error in refusing to ask the proposed question concerning law enforcement officers’ credibility was not harmless.

III.

A dissenting opinion was filed in Evans. I must confess that, at least in some respects, it appears that my two colleagues believe that the principles governing this case are to be found in that dissent, rather than in the opinion of the Evans majority and in the subsequently rendered unanimous panel opinion in Rainey. Like the majority here, the dissenting judge in Evans conceded that the district court should have asked the proposed voir dire question, but contended that the court’s failure to do so was harmless because (1) the jurors likely would have claimed not to believe that law enforcement officers’ testimony is generally more credible than that of others,² (2) the district court made an effort to probe for possible bias by asking whether any of the potential jurors worked in a law enforcement capacity and whether they knew of any reason why they could not be impartial, and (3) the district court gave general instructions concerning the manner in which the testimony of witnesses could be evaluated. Id. at 809-12 (dissenting opinion). Echoes of that dissenting opinion are unmistakably present in the opinion handed down by the majority today. Indeed, it seems to me that the majority has disregarded one of the most fundamental and well established principles under which we are to operate: that a panel of three Fourth Circuit judges may not overrule a prior published panel opinion. See, e.g., Norfolk & Western Ry. v. Director, OWCP, 5 F.3d 777, 779 (4th Cir.1993) (“Even if we were so inclined, ... a panel of this court may not overrule another panel’s decision.”).

Under the law of this circuit, as articulated in the majority opinion in Evans and in the unanimous opinion in Rainey, I do not believe that any other conclusion can be reached but that Appellants are entitled to receive a new trial. The majority having concluded otherwise, I must respectfully dissent.

1 . The precise question proposed by Appellants was: “Do any of you believe that a guard at Lorton [Reformatory], a police officer or a member of the F.B.I. is more worthy of belief than any other citizen of our community?"

2 . The Evans dissenter suggested that, on appeal, the defendants should have been required to show that one or more members of the venire panel would have confessed to believing that police officers' testimony is more credible than that of other citizens. See Evans, 917 F.2d at 810 (dissenting opinion). The majority here does not advance that argument.