Hastings, Senior Circuit Judge, and Stevens and Sprecher, Circuit Judges.
Appellant, Ramon C. Esquer, was convicted by a jury for the murder of Joseph Terry Madden in violation of 18 U.S.C. § 1111.*fn1 Esquer appeals to this court alleging that the evidence was insufficient to support the conviction and that, even if sufficient, the conviction cannot be allowed to stand due to certain erroneous rulings by the district judge and prejudicial comments by the prosecuting attorneys.
While most of the evidence is in conflict, it is undisputed that Madden's death was a result of three stabwounds inflicted by the appellant. The government charged and the jury concluded that appellant premeditatively attacked and killed Joseph Madden. Esquer offered proof that the death occurred as a result of his efforts to defend himself against an armed attack by the victim.
The appellant and victim, as well as virtually all the 29 witnesses who testified at trial, were inmates at the United States penitentiary at Marion, Illinois. It appears from the record that on November 30, 1969, during the noon meal, a sudden altercation between the deceased and the appellant occurred in the prison dining room. That altercation left Madden mortally wounded.
The details of the incident are in sharp conflict. The government offered testimony by two inmates that Esquer, who worked in the serving line in the dining room, left his position behind the steamtable, walked to the center of the room where the deceased was sitting and attacked him from behind by seizing him around the neck with his arm and stabbing him in the back. These witnesses further testified that, as Madden slumped to the floor, Brown, a companion, left the table and fled toward the door. Appellant then turned and chased after Brown, but was intercepted by two prison guards who overpowered and disarmed him. This version of the incident is partially corroborated by the guards, who, although they did not see the actual stabbing, testified that they saw an inmate being chased through the dining room by appellant Esquer. Their testimony shows, additionally, that at the time they apprehended the appellant he had the murder weapon in his hand. Finally, the government produced the examining pathologist who testified that the cause of death was one of three deep puncture wounds in the deceased's back.
The appellant's version of the incident is substantially different. He offered the testimony of 19 inmates who testified with varying degrees of detail that, as Esquer walked behind the deceased's table, the deceased sprang up to attack him with a knife which he had concealed in his lap. Esquer, who was uniformly described as athletic, avoided the attack and wrestled with his assailant. No witness was able to relate how Esquer got possession of the knife or how the wounds were inflicted, but there is substantial testimony that it was the appellant who was first attacked. The testimony of these defense witnesses also contradicts the government's testimony that the appellant was chasing Brown. Their version has the appellant being chased by Brown.
With respect to the sufficiency of the evidence, the appellant argues that the trial court erred in denying defense motions for directed verdicts both at the close of the government's case and at the conclusion of all the evidence. It seems clear, however, that even though the facts surrounding the homicide were in sharp dispute, the testimony by government witnesses that the defendant attacked the decedent from behind was sufficient to allow the case to go to the jury.
In determining sufficiency, the appellate court must weigh the evidence and the reasonable inferences which can be drawn from that evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 86 L. Ed. 680 (1942); United States v. Zimmerman, 326 F.2d 1, 3 (7th Cir. 1963); United States v. Coduto, 284 F.2d 464, 466 (7th Cir. 1960), cert. denied, 365 U.S. 881, 81 S. Ct. 1027, 6 L. Ed. 2d 192 (1961). Applying that standard, we believe there was sufficient proof to support the verdict.
What appellant actually seeks here is appellate review of issues which would require this court to substitute its judgment as to the credibility of the witnesses for that of the jury. This we cannot do. As Mr. Justice Clark recently observed in United States v. Karigiannis, 430 F.2d 148, 151 (7th Cir.), cert. denied, Panagiotapoulos v. United States, 400 U.S. 904, 91 S. Ct. 143, 27 L. Ed. 2d 141 (1970), "Questions of credibility have no bearing on the insufficiency of the evidence as a whole . . . and are not for the reviewing court's decision." This court has frequently followed a similar rationale in holding that "it is not the province of the Court of Appeals to retry the case, weigh the evidence or determine the credibility of witnesses." United States v. Miles, 401 F.2d 65, 67 (7th Cir. 1968); United States v. Jones, 302 F.2d 46, 47 (7th Cir. 1962); United States v. Ziemer, 291 F.2d 100, 102 (7th Cir.), cert. denied, 368 U.S. 877, 82 S. Ct. 120, 7 L. Ed. 2d 78 (1961). This precedent is not without cogent foundation, for as Mr. Justice Jackson noted in Ashcraft v. Tennessee, 322 U.S. 143, 171, 64 S. Ct. 921, 934, 88 L. Ed. 1192 (1944) (dissenting opinion), "a few minutes' observation of the parties in the courtroom is more informing than reams of cold record."
Appellant's first allegation of trial error concerns the security precautions taken during the testimony of defense witness Castillo, a maximum-security prisoner. Castillo, who had acted as an interpreter for the defendant and for his attorney in preparation for trial, was forced to testify while shackled with handcuffs. Relying upon the recent Supreme Court decision, Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970), the appellant urges that such excessive security destroyed the credibility of his defense and thereby deprived him of a fair trial. While the Court in Allen allowed trial judges great latitude in determining the measures to be used to maintain order in their courtrooms, it expressed a view that judges should employ the least drastic means to reach that end. We agree with the appellant that the shackling of witnesses is an unfortunate and undesirable practice which should be employed only in cases of extreme need.
It is our view, however, that in this case the prejudice which might have flowed from the use of handcuffs on witness Castillo did not rise to the level of reversible error. The testimony of this witness does not appear to have been vital to the defense. Indeed, his testimony related only to certain physical features of the isolation block in the Marion penitentiary, which the government contended allowed defense witnesses to discuss their testimony prior to trial. He could offer no testimony on the actual events surrounding the crime. In such a situation, without some showing of actual prejudice, the conviction must be allowed to stand. This conclusion should not, however, be interpreted as approval of the practice of shackling witnesses; on the contrary, such a practice is inconsistent with our basic concepts of justice and should be resorted to only in exceptional situations.
The second ground for reversal urged by the appellant concerns the trial judge's refusal to propound appellant's requested questions on voir dire. We have examined the list of questions presented by the appellant and have compared that list to the voir dire questions actually asked by the judge. We find that substantially all the requested inquiries were made by the trial judge. It is true that they were not in every case made in the form submitted, but in substance the defendant received virtually all the information specifically requested. In addition, a review of the voir dire as a whole leads us to the conclusion that it made "sufficient inquiry as to the background and attitudes of the jurors to enable the litigants, not only to challenge for cause, but to exercise their peremptory challenges." Spells v. United States, 263 F.2d 609, 611 (5th Cir.), cert. denied, 360 U.S. 920, 79 S. Ct. 1439, 3 L. Ed. 2d 1535 (1959).
Appellant next complains of the trial judge's failure to instruct the jury on the issue of self-defense. It is contended that the judge, having been apprised of the defendant's desire to have a self-defense instruction given, had an obligation to so instruct the jury even though appellant failed to prepare and offer an instruction on this defense.*fn2 Cf. United States v. Napue, 401 ...