Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. No. TH 76-20-Cr - Cale J. Holder, Judge.
Fairchild, Chief Judge, Tone, Circuit Judge, and William J. Campbell, Senior District Judge.*fn*
Ronald W. Shepherd was one of four prisoners serving sentences in the federal penitentiary at Terre Haute, Indiana, who were tried before a jury under an indictment charging that they murdered a fellow prisoner in violation of 18 U.S.C. § 1111. The jury found Shepherd and two other defendants guilty and the fourth not guilty. After the foreman had announced these verdicts but before the jury was polled, the judge made certain remarks in the jury's presence that Shepherd argues require a new trial because of their impairment of the right of polling. Also, Shepherd argues that he was charged with a capital crime and that therefore his request under 18 U.S.C. § 3005 for two attorneys should have been granted. We reject these and other arguments and affirm the conviction.
The appeals of Shepherd and the two other defendants were heard together. Only Shepherd raises the two issues described above. His other arguments and the arguments of the other defendants raise issues concerning the application of recognized rules of law to the particular facts of the case and are therefore disposed of by unpublished order under Circuit Rule 35.
Owing to severely inclement weather and the fact that the defendants and many of the trial witnesses were prisoners, the trial was conducted over eight consecutive days, and usually well into the evening hours. The jury retired to deliberate on its verdicts at approximately 4:00 P.M. on Monday, January 24, 1977. In his instructions and admonitions to the jury before they retired, the judge stated that after they returned their verdict they would be polled individually, and that their verdict must be unanimous. The record shows no inquiries or other communications by the jury to the court until the return of the verdicts at noon on the following day.
After the clerk announced the verdicts finding Shepherd, Vaughn, and Cantrell guilty and Sparks not guilty, counsel for all parties examined the verdict forms, each of which was signed by the foreman only and stated that the jury had reached its verdict and what that verdict was. The judge then called Sparks, the acquitted defendant, before the bench, and the following occurred:
The Court: Mr. Sparks, this jury has found you not guilty of the crime of murder, second-degree murder, and voluntary manslaughter. You know whether you were guilty or not, and you are just the beneficiary of a very fine lawyer and this great judicial system that this country has, and our great Constitution.
Many a jury would have found you guilty: you had the gun together with these other men. You stood there at the --
Mr. Sparks: A lie, your Honor.
The Court: Mr. Lippie didn't testify you put your hand on him, right on the dead man; because of some other misconduct on the part of Mr. Lippie he wasn't used as a witness, you understand.
The Court: You are discharged. You have to live with these other men, and you know whether you were or not. You are just a very, very fortunate man.
I only hope, by liberation of you, that there isn't somebody else killed out in this penitentiary because they get away with it. We had twelve of them get away with it a year ago, and so long as you have that kind of a system working there will be some people continue to kill people in the penitentiary. Inmates in the penitentiary are entitled to have the protection of law, just like other citizens have, and you are still there, still committing the crimes.
Now will the marshal remove him? We'll process the other defendants.
The Court thanks you, counsel, for your excellent service in representing this man.
All defense counsel remained silent throughout this colloquy, at the conclusion of which the judge offered all counsel the opportunity to poll the jury. Counsel for Vaughn then polled the jury, addressing each juror individually.*fn1 All twelve jurors confirmed their verdict. Counsel for Shepherd, before polling the jury, moved for a mistrial on the ground that the court's "admonishment" of defendant Sparks had "effectively denied his [Shepherd's] right to poll the jury." The motion was denied, and Shepherd's counsel then ...