U.S. v. MARTIN

MANION, Circuit Judge.

During Henry Martin's trial for bank robbery he asserted as part of his defense that because he was financially secure he had no motive to rob the bank. While cross-examining Martin, the prosecutor inquired about an apparent inconsistency between Martin's assertion of financial security and the indigence he claimed in the financial disclosure form which he filed to obtain a free attorney. As Martin's responses to the prosecutor were somewhat ambiguous and contradictory, the district judge questioned Martin further on some of the points raised. Because this questioning occurred in the presence of the jury, Martin moved for a mistrial claiming that the nature and tone of the court's inquiry amounted to judicial advocacy for the prosecution and suggested to the jury that the court thought Martin was untruthful. The district court denied the motion. Martin appeals and we affirm.

I.

At 6:53 p.m., on March 19, 1998, a woman (later identified as Lisa McElwee) entered a Tri City National Bank branch in Brown Deer, Wisconsin and displayed a note which read: "give me your money, not bait," and verbally repeated the command.1 She made off with $1,212, ran into the parking lot, and got into a black car driven by a man. Witnesses testified that the man opened the driver's side door and after she dove into the car over his lap he shut the door, waved to her pursuers, and then sped away. About an hour after the robbery, Henry Martin went to the police and told them that he had been driving in the parking lot near the bank when a woman jumped into his car and forced him to drive her away. The getaway car was his, and to preempt police tracking his license number he presented this carjacking explanation.

On March 25, 1998, the Milwaukee police arrested McElwee and Martin while they were sitting in Martin's car after purchasing some heroin. When confronted with a photograph from the bank surveillance camera, McElwee admitted that the picture was of her and told the police that Martin was the driver of the getaway car. She related that she had known Martin for seven years, had previously worked with him at the Social Development Commission, and since 1993 she and Martin frequently would consume heroin together. When the police showed Martin the surveillance photograph he responded that the robber depicted in it was the woman who hijacked his car, but that McElwee was not that person. Subsequently, a grand jury indicted Martin and McElwee for one count of bank robbery in violation of 18 U.S.C. §§ 2113(a) & 2.

McElwee entered into a plea agreement, testified against Martin at his trial, and related how the robbery transpired. On the day of the robbery, Martin picked her up at her house and they went and consumed heroin together. Later, as they were sitting in his car, they hatched their plot after hearing on the radio about a successful bank robbery. McElwee testified that Martin eventually drove her to the bank which she robbed, and that they escaped in his car. They drove to McElwee's mother's house where they counted the money. Martin then told McElwee that he was going to tell the police that a woman shoplifter jumped into his car and forced him to drive away, as he was afraid that someone had seen his license plate. So about an hour after the robbery, Martin went to the police station to report that he had been a victim of a carjacking near the Tri City National Bank. The police immediately doubted his story. They obtained fingerprints from his car which matched those taken during a prior arrest of McElwee. The police then examined a photograph of McElwee from police records and learned that her facial profile matched pictures of the robber taken by the Tri City Bank surveillance cameras.

As the evidence overwhelmingly conflicted with Martin's version of events, he was forced to abandon his initial story and finally admitted at trial that he drove McElwee to the bank, that she robbed the bank, and that the woman who jumped into his car was McElwee. He also admitted the obvious: he had concocted the carjacking story. Martin denied, however, that he knew McElwee was going to rob the bank and stated that he played no role in planning the robbery and did not receive any of the money.

With his credibility severely damaged, a major part of Martin's defense was that he had no need to rob a bank, as he had been receiving severance pay, his wife had a good job, and he had plenty of art, jewelry, and electronic goods which he could have liquidated. So on direct examination, Martin's attorney inquired into these subjects. Despite the leading questions, Martin's answers were vague and ambiguous.

On cross-examination, the Assistant United States Attorney began probing in these areas, especially because Martin's testimony seemed to conflict with the assertion of poverty that he made to obtain free legal counsel. Martin first agreed with her statement that he had not worked since July 1997.

But recall that Martin previously testified that he had worked sporadically as a paralegal. Martin's subsequent answers were ambiguous on this point, as he mentions receiving money from an attorney and receiving a tax refund.

Martin then reasserted that he had not been working.

Martin similarly equivocated on whether government officials previously asked him about his assets.

But later, Martin admitted that he in fact had talked to someone about his assets.

Next, the prosecutor addressed Martin's assertion that he had a valuable art collection, despite the fact that he omitted mention of this on his financial disclosure form.

Later on redirect, in a last-ditch attempt to rehabilitate Martin's credibility, Martin's attorney asked him whether in connection with the financial disclosure form anyone ever specifically asked him whether he had any art worth $30,000. Needless to say, Martin responded that nobody ever asked that specific question. The district judge then sought to clarify the situation by examining Martin in the presence of the jury. He asked Martin to read the disclosure form and tell him if everything on it was accurate.

After the jury was dismissed, Martin's attorney objected to the court's questioning and moved for a mistrial because the court's comments "and the tone of the court's voice with regard to the questioning of Mr. Martin may have unfairly prejudiced Mr. Martin in the eyes of the jury and may have given the jurors the impression that the court thought that Mr. Martin was lying or knew that Mr. Martin was lying."

In orally ruling on the motion, the district judge explained at least one of his purposes for examining Martin:

[Tr. pp. 414-15] The district judge, therefore, denied the motion for a mistrial. The jury eventually convicted Martin of one count of bank robbery. He was sentenced to imprisonment for sixty-two months, three years of supervised release, and a fine of $4,000. Martin now appeals his conviction arguing that the district court erred in denying his motion for a mistrial based on the district judge's interrogation of Martin.

II.

We review the propriety of a judge's examination of witnesses for an abuse of discretion. Collins v. Kibort, 143 F.3d 331, 336 (7th Cir.1998). "The examination of witnesses requires judicial supervision." United States v. Verser, 916 F.2d 1268, 1272 (7th Cir.1990) (internal quotations omitted). Accordingly, under Fed. R.Evid. 614(b), a judge generally is free to interrogate witnesses to ensure that issues are clearly presented to the jury. Along with other circuits, we have frequently reminded litigants that "`the function of a federal trial judge is not that of an umpire or of a moderator at a town meeting.'" Collins, 143 F.3d at 336 (quoting United States v. Jones, 730 F.2d 593, 598 (10th Cir.1984)). Rather than simply being a silent spectator, intelligent questioning by the trial judge is his prerogative. United States v. Bellomo, 176 F.3d 580, 596-97 (2d Cir.1999). The occasional questioning of witnesses is one means a judge may use to assist a jury in understanding the evidence. United States v. Evans, 994 F.2d 317, 323 (7th Cir.1993) (the basis for judicial interrogation comes from the judge's duty to avoid confusion in the presentation of evidence). Thus, a trial judge may ask those questions he deems necessary in order to clarify an important issue, as long as he remains impartial. United States v. Webb, 83 F.3d 913, 917 (7th Cir.1996).

Because trial judges wield substantial influence over juries, a judge's discretion to question witnesses is not unfettered. A judge cannot assume the role of an advocate for either side, Ross v. Black & Decker, Inc., 977 F.2d 1178, 1187 (7th Cir.1992), but he can question a witness in an effort to make the testimony clear for the jury. This should not include questions which indicate the judge's belief about a witness' honesty, United States v. Tilgham, 134 F.3d 414, 416 (D.C.Cir.1998), especially when a criminal defendant testifies on his own behalf. United States v. Cantu, 167 F.3d 198, 203 n. 21 (5th Cir.), petition for cert. filed, 67 U.S.L.W. 3749 (U.S. Jun. 1, 1999). Therefore, the initial inquiry in reviewing challenges to a judge's questions to a witness at trial is whether by his conduct the trial judge conveyed to the jury a bias regarding the defendant's honesty or guilt. United States v. Gill, 909 F.2d 274, 278 (7th Cir.1990).

The second inquiry concerns whether the complaining party can show serious prejudice resulting from the trial court's comments or questions. United States v. Henry, 136 F.3d 12, 19 (1st Cir.1998); United States v. Pinkey, 548 F.2d 305, 310 (10th Cir.1977). Given the challenge before us, we must examine the entire record to determine whether the district judge displayed a bias, and if so, whether this bias affected the jury's decision. United States v. Leslie, 103 F.3d 1093, 1104 (2d Cir.1997); United States v. Pressley, 100 F.3d 57, 60 (7th Cir.1997). If the court's questions were partial to the prosecution and they could prejudice the jury's decision, then reversal of the conviction could be in order. Leslie, 103 F.3d at 1104; see United States v. Donato, 99 F.3d 426, 435 (D.C.Cir.1996) (per curiam) ("negative comments directed by trial judge to a defendant or her counsel will warrant reversal `if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.'").

In the present case, we first note that the district judge's stated purpose for interrogating the defendant—to assure that Martin was truly indigent and that the CJA program was being run efficiently—was an important one and it certainly merited some attention. It was not, however, a concern of the jury. "A judge's questions must be for the purpose of aiding the jury in understanding testimony." U.S. v. Saenz, 134 F.3d 697, 702 (5th Cir. 1998); see Leslie, 103 F.3d at 1104 (the trial judge's questions primarily should "clarify ambiguities, correct misstatements, or obtain information necessary to make rulings."). Due to the possibility that the district judge might appear partisan in questioning a defendant, to avoid any claims of bias district judges should inquire into such things as appointment of counsel by questioning the defendant when the jury is not present. If a judicial inquiry is not made for the benefit of the jury, the jury has no need to observe it.

But the preservation of the integrity of the CJA program was not the only purpose served by the judge's interrogation. The subject matter of his questions concerned issues which Martin's counsel and the prosecution addressed—Martin's financial condition, the extent to which he was financed by his wife's salary, and his art collection. Martin's responses to counsel on direct examination were sometimes ambiguous and conflicted with the testimony he provided on cross-examination. In interrogating Martin, the judge sought clarification of Martin's answers to questions by both parties concerning his motive, or lack thereof, to rob the bank, which is certainly a relevant issue and a legitimate concern of the jury. For if Martin did indeed own paintings worth $30,000, he may not (as he suggested) have been as needful of money as someone without any assets. Similarly, if Martin were enjoying the benefits of his wife's salary, he may have had a diminished incentive to rob the bank. So, depending on Martin's answers, the judge's questions had the potential to assist or frustrate Martin's defense. Regardless, the questions were posed to clarify Martin's testimony, and the clarification of ambiguities is a legitimate purpose of judicial interrogation of witnesses. United States v. Messina, 131 F.3d 36, 39 (2d Cir.1997).

As to any prejudice resulting from the questions, we note that in attempting to clarify Martin's answers, the district judge was firm, but not harsh or abusive in any way.4 The questions were not laced with skepticism and they gave no indication as to the judge's thoughts about Martin's honesty or dishonesty; rather, the truth or untruth on the subject of inquiry came from Martin's responses. Importantly, the rule concerning judicial interrogation is designed to prevent judges from conveying prejudicial messages to the jury. It is not concerned with the damaging truth that the questions might uncover. So to the extent that Martin's argument is concerned with the truth made plain by the judicial inquiry, he has no basis for complaint, especially when his earlier testimony covered the subject matter and created some conflict or confusion. The district judge's questions explored earlier contradictory answers. When a defendant gets caught in his own contradictions, he shouldn't blame the district judge for asking relevant questions.

But even if the judge's questions suggested that Martin was untruthful, any error was harmless. Certainly the testimony of Martin's partner in crime (McElwee), that Martin fully cooperated in the planning and coverup of the robbery, left a strong impression on the jury. Furthermore, given that the defendant repeatedly admitted to initially lying to the police about his role in the robbery, Martin's "no motive" defense was collapsing under its own weight. As this court has often stated: the propensity to lie to authorities is especially damaging to a witness's credibility. See, e.g., United States v. Manske, 186 F.3d 770, 779-80 (7th Cir.1999); Crivens v. Roth, 172 F.3d 991, 998 (7th Cir.1999). This applies not only to the prosecution's witnesses, but also to a witness who is testifying on his own behalf. Martin's distortions were particularly detrimental in this case, as his lies to the police concerned his involvement in the same robbery that he later described much differently to the jury. So it is hard to fathom how the judge's questions could have further undermined Martin's already minimal credibility.

It is also important that the district judge gave the jury a cautionary instruction immediately after it returned to the courtroom from the recess that followed Martin's testimony regarding the financial disclosure. At that point the judge stated:

[Tr. p. 415] Trial judges have broad discretion in determining whether a cautionary instruction as opposed to a mistrial will prevent any possible prejudice. United States v. Hall, 165 F.3d 1095, 1116 (7th Cir.1999). We assume that juries follow the courts' instructions. Id. Cautionary instructions may cure or diminish any prejudice that could have resulted from the trial judge's comments or questions. See United States v. Candelaria-Silva, 166 F.3d 19, 36 (1st Cir.1999); Bell v. Evatt, 72 F.3d 421, 434-35 (4th Cir.1995); Evans, 994 F.2d at 324.5 Thus, even assuming arguendo that the district judge's comments could have prejudiced the jury in any way, the court's instruction was sufficient to cure the misperception. Therefore, while in hindsight the district court would have been better advised to conduct at least part of its colloquy out of the presence of the jury, the court did not abuse its discretion in declining to grant a mistrial.

AFFIRMED.