Reargued en Banc June 21, 1972.
Seitz, Chief Judge, and Kalodner and Gibbons, Circuit Judges. On Reargument: Seitz, Chief Judge, and Kalodner, Van Dusen, Adams, Gibbons, Max Rosenn, James Rosen and Hunter, Circuit Judges. Gibbons, Circuit Judge, with whom Seitz, Chief Judge, and James Rosen, Circuit Judge, join, dissenting.
This is an appeal by the defendant Larry J. Gray from a judgment of conviction pursuant to a jury verdict finding him guilty of bank robbery in violation of 18 U.S.C.A. § 2113(a) and (b).
Gray contends that prejudicial errors were committed in his trial when the prosecutor, in cross-examination, asked him this question: "You say your wife was killed. You killed her, didn't you?", and when the government, in its case-in-chief, adduced testimony that Gray had suffered prior imprisonment.
Gray does not contend that the trial evidence was insufficient to sustain his conviction. Nor does he now press an initial contention that the trial judge erred in refusing to grant him a requested instruction on identification. We find no error in the identification instruction given to the jury by the trial judge.
The testimony relevant to our disposition may be summarized as follows:
About 11:30 a.m., June 17, 1968, the Fidelity Bank branch at 16th Street and John F. Kennedy Boulevard, Philadelphia, Pennsylvania, was robbed of $380.00 cash. A paying teller gave the money to the robber after he had handed her a penned threatening note demanding "a handful of 20 dollar bills." Gray was indicted on October 22, 1970. He was tried to a jury in January 1971. He was sentenced to a 10-year prison term.
Gray was identified as the hold up man by the paying teller who was robbed. Several other bank employees were unable to identify him, saying only that he resembled the hold up man.
A handwriting expert employed by the Federal Bureau of Investigation testified that Gray had written the hold up note used in the robbery, basing his opinion on his comparison of the note with handwriting and hand printing samples obtained from Gray. In order to establish the chain of possession of the handwriting samples, the government adduced the testimony of FBI Agent Schwein who had obtained them. Schwein testified that he had obtained two sets of samples, the first set on October 9, 1969, and the second set several days later.
After Schwein had testified that he had made "initial contact" with Gray on October 9, 1969, the prosecutor asked him "where?" and the answer was "at Holmesburg Prison." Gray's counsel did not object to the question nor did he move to strike the answer. Schwein further testified that after the FBI laboratory at Washington had requested additional samples, " I went back to the prison " and obtained them from Gray. (emphasis supplied). There was no objection to this latter testimony.
Gray took the stand in his own behalf. He presented an alibi defense, testifying that he was at work on the day and at the hour the bank robbery took place.
Seeking to cast doubt on the identification testimony of the paying teller who had described the robber as weighing about 150 pounds and wearing glasses, Gray said that at the time of the robbery in June 1968 he weighed 175 pounds and he did not wear glasses. He testified that he did not acquire glasses until March 1970 when "I had trouble reading in Holmesburg Prison while I was locked up waiting trial on my wife's death," and that "after my wife was killed, I lost quite a bit of weight."
It was at this point in Gray's testimony that the prosecutor asked him the question:
"You say your wife was killed. You killed her, didn't you?"
Defense counsel objected to the question; the prosecutor, in reply, said it was asked in an attack on Gray's credibility.
The jury was then excused. As later detailed, the trial judge severely criticized the prosecutor for asking the challenged question. The prosecutor said he had "a right" to impeach Gray's credibility by establishing his felony conviction for the voluntary manslaughter of his wife, and his conviction for robbery. In an ensuing discussion, it was developed that Gray had been convicted in July 1970, for the voluntary manslaughter of his wife in September 1969, some 15 months after the June 1968 robbery here involved. Defense counsel moved for a mistrial at this time and it was denied. The trial judge ruled, however, that the prosecutor could not question Gray with respect to any prior record.
The jury was then recalled to the courtroom and instructed as follows by the trial judge:
"Members of the jury, for reasons which are of no importance to you at this time, whatever testimony you have heard, and it is very little, just a few questions, regarding the death of Mr. Gray's wife, just ignore that, strike it from your minds entirely. When you consider this case and deliberate just force it out. Pay no attention to it whatsoever." (italics supplied).
After Gray was found guilty he filed a motion for a new trial. In it he contended, inter alia, that the question "You say your wife was killed. You killed her, didn't you?" was under the circumstances so inherently prejudicial that the trial judge erred in denying his trial motion for a mistrial.
The trial judge denied the motion for a new trial.
In doing so he said in relevant part:
"While we believe that the phrasing of the question was improper, we do not believe that the defendant was prejudiced by it. . . . Considering the magnitude of the evidence against defendant, it, if error at all, was harmless beyond a reasonable doubt."
It must be noted, parenthetically, that the trial judge, in his Opinion denying Gray's motion for a new trial, did not rely on, nor advert to, his cautionary instruction to the jury to "ignore" the prosecutor's challenged question anent Gray's killing of his wife.
We are of the opinion that the trial judge erred in denying Gray's motion for a new trial for these reasons:
"You say your wife was killed. You killed her, didn't you?"
That question, put to the defendant by the prosecutor in this robbery trial was grievous plain error, and the trial judge compounded it when he failed to declare a mistrial on the defendant's trial motion.
That the trial judge at the time was aware of the prejudicial dimension of the prosecutor's question, and his duty to declare a mistrial by reason of it, is demonstrated by his own statements. He then said:
" Frankly, this is beyond belief. . . I think it is highly prejudicial. I am going to tell the jury to disregard that question. . . . I should declare a mistrial, I think, but I won't. . . . When you say to a witness 'you killed your wife', that is about the strongest thing I have heard in a court room in many years." (italics supplied).
Wife murder is an atrocious crime, revolting and abhorrent to the conscience of our society. No cautionary instruction could purge the jury's mind and memory of the devastating impact of the question "You say your wife was killed. You killed her, didn't you?" The question irretrievably seared itself into the conscious and subconscious minds of the jury. The most valiant striving on the part of a conscientious juror to comply with the trial judge's admonition to "strike it from your minds entirely"; "just force it out"; "pay no attention to it whatsoever"; could in the case of some jurors only be an exercise in futility. To hold that the cautionary instruction was an effective detergent which completely laundered out of the jury's mind the impact of the prosecutor's question, is unrealistic and ...