Appeal from the United States District Court for the Eastern District of Illinois, East St. Louis Division No. 74 Cr. 91 E, James L. Foreman, Judge.
Tone and Wood, Circuit Judges, and Grant, Senior District Judge.*fn*
HARLINGTON WOOD, Jr., Circuit Judge.
Appellant Merle Lyle Chaussee, hereinafter referred to as the defendant, was convicted of the crime of aggravated battery on a government reservation in violation of 18 U.S.C. §§ 7 and 13, the Assimilative Crimes Act, and Illinois Revised Statutes, Chapter 38, § 12-4. Defendant asserts on appeal that: 1) a mistrial should have been declared by the trial court; 2) the results of a mental examination conducted pursuant to 18 U.S.C. § 4244 should have been disclosed to him; 3) that he received ineffective assistance of counsel; and 4) the sentence imposed by the trial court was incorrect and excessive.*fn1
The facts are not in dispute. On the morning of the second day of his two day trial, the defendant, just before court opened but in the presence of the jury, attempted to escape from the courtroom. The defendant jumped from his seat at counsel table and bolted through the courtroom door into the hall where he was captured by Marshals and returned. At the time of his attempted escape one of the jurors was heard to utter the word "guilty." The trial judge who had not yet entered the courtroom, upon being advised of this occurrence conducted a hearing outside the presence of the jury to determine what had happened. The defendant moved for a mistrial on the grounds that since the jury had witnessed the event, the defendant could not thereafter receive a fair trial. This motion was denied, the trial judge indicating that he would not allow a defendant by a "bootstrap operation" to bring a halt to his trial by his own misconduct. The jury was then brought back into court and admonished by the trial judge to disregard those actions by the defendant which the jurors had just witnessed:
Defendant asserts that the denial of his motion for a mistrial deprived him of his right to a fair trial by an impartial jury in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States. Defendant argues that the court's instruction to the jury was not adequate and that in view of one juror's prejudicial utterance the court should have made inquiry to determine the existence of any prejudice among the jurors.
The Government defends the denial of a motion for a mistrial on the policy basis that a defendant by his own intentional misconduct should not be permitted to prevent the completion of his trial. The Government also contends that the one juror's utterance did not necessarily indicate that the juror had thereby reached a verdict without regard to the evidence and in disregard of the court's instructions, given both immediately after the occurrence, as already noted, and at the close of all the evidence.*fn2
The judge fully informed himself as to what had occurred, assessed its impact on the jury and promptly admonished the jury to disregard the defendant's misconduct. Again at the conclusion of all the evidence the judge fully instructed the jury that it was their sworn obligation not to base a verdict of guilty upon anything other than the evidence. There is no reason to assume or speculate that the court's instructions relating to defendant's trial conduct were not efficacious. United States v. Marshall, 458 F.2d 446 (2d Cir. 1972).
The evidence that the defendant had stabbed another inmate of the United States Penitentiary at Marion, Illinois, without provocation was overwhelming, yet the jury deliberated for approximately five hours before returning its verdict of guilty. It cannot be said the jury did not conscientiously consider the evidence in the light of the court's instructions.
The defendant now contends that the judge should have made inquiry of the members of the jury in an effort to determine specifically whether or not any prejudice resulted from the defendant's attempted escape. Under some circumstances such a procedure may be advisable, but defendant made no such request at the time.
Prior to this attempted escape during the course of the trial the defendant interrupted the proceedings by addressing abusive comments at a testifying witness. The court excused the jury and advised the defendant:
Mr. Chaussee, I don't know how to say this to you other than the fact that it's your trial and I want to give you a fair trial, sir. And I hope you will act accordingly. (Tr. 19)
Thus, the defendant was admonished by the court about the possible effects his conduct might have upon his trial. Later he made his effort to escape. The fault lies with the defendant, not with the court or the jury. To allow a defendant by his own misconduct to terminate his ...