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UNITED STATES v. SAVAGE

April 6, 1977

UNITED STATES of America
v.
Terry Eugene SAVAGE



The opinion of the court was delivered by: MUIR

 On December 21, 1976, Defendants Savage, Shepard and Woodson were found guilty of murder in the first degree for the stabbing death of inmate Mark Silver at the United States Penitentiary in Lewisburg, Pennsylvania on May 15, 1976. Defendant Wiggins was convicted of murder in the second degree. Defendant Savage has filed a motion for new trial. Defendants Shepard and Wiggins have filed motions for new trial and judgments of acquittal. Defendant Woodson joins in the motions and brief filed by Defendant Shepard.

 Defense counsel take a dragnet approach to the issues raised, each incorporating and adopting the motions and briefs of the others. Consequently, unless otherwise indicated, the Court will treat every issue as if it has been raised by all Defendants. Nevertheless, defense counsel's respective positions on the various issues are ambiguous. For example, in his supporting brief at page 2, Defendant Savage "incorporates the arguments submitted by other Defendants on these issues and on the other issues raised in the new trial Motion." Two pages later, Savage states, ". . . in this Brief, counsel will not be arguing that the verdicts were against the weight of the evidence as a matter of law. It is realized that questions of credibility are normally for the jury." However, the briefs submitted by Defendants Shepard and Wiggins and ostensibly incorporated by Savage contend at length that the verdicts are against the weight of the evidence and are not supported by "substantial evidence".

 The Court will treat the points raised by defense counsel in their approximately chronological order.

 I. Denial of Access to Central Prison Files.

 The Court denied pre-trial motions for discovery by Savage and Wiggins which requested an opportunity to inspect and copy relevant portions of the central files of all Government witnesses. See Orders dated November 15, 1976 in Criminal No. 76-132-1 and December 3, 1976 in Criminal No. 76-132-2. (Although they filed no motions of their own, Shepard and Woodson apparently received the fruits of the motions by the other two Defendants.) The files were subsequently provided to defense counsel during trial. The Defendants assert that the denial of their requests for pre-trial inspection impaired their ability to digest the material contained therein and undercut their attempts at impeachment of Government witnesses.

 The Defendants were represented by six court-appointed attorneys and a private lawyer retained by Mr. Woodson. As evidenced by the motions under consideration now, there was little, if any, conflict of interest among the Defendants. Their counsel readily cooperated with one another. The Court has perused more than one central prison file and knows that many of the documents contained therein are completely irrelevant to an individual's credibility as a witness in a criminal case and can be passed over rapidly. The resources available to the Defendants were adequate to permit them to analyze the central prison files of Government witnesses while the trial was in progress. The cross-examination of prosecution witnesses, which was lengthy and detailed, did not suffer from a paucity of information concerning the individual under interrogation. To have permitted inspection of the central files prior to trial would obviously provide the Defendants with a list of government witnesses. They are not entitled to such a list. U.S. v. Mitchell, 540 F.2d 1163, 1166 (3d Cir. 1976); U.S. v. Addonizio, 451 F.2d 49, 62 (3d Cir. 1971), cert. denied, 405 U.S. 936, 92 S. Ct. 949, 30 L. Ed. 2d 812 (1972).

 II. Denial of Pre-Trial Access to Grand Jury Minutes.

 The Defendants challenge that portion of the Court's Orders of November 15, 1976 and December 3, 1976, which denied them access to Grand Jury Minutes prior to trial. As with the central files discussed in the preceding section, this information was provided to defense counsel during the course of the trial. The Defendants concede that only in unusual circumstances does a Court deviate from the general rule that the testimony of a Grand Jury witness is excluded from discovery until that individual testifies at trial. See U.S. v. Eisenberg, 469 F.2d 156 (8th Cir. 1972), cert. denied 410 U.S. 992, 93 S. Ct. 1515, 36 L. Ed. 2d 190 (1973). Nevertheless, they maintain that the exigencies and complexities of this particular case required such discovery. The Court does not agree.

 The Defendants point to no specific instance where their alleged inability to parse the Grand Jury transcripts during trial caused them to miss vital points for interrogation and impeachment. On the contrary, the defense made protracted use of the Grand Jury proceedings in its cross-examination of Government witnesses. An observer at trial or a reader of the transcript would find surprising the Defendants' contention that they were unable fully to exploit the often inconsistent Grand Jury testimony of Government witnesses.

 III. Denial of Motion for Continuance.

 Late in the afternoon of December 2, 1976, the day prior to the commencement of jury selection, Defendant Shepard's lead attorney filed a motion for a one-month continuance, citing the large volume of materials which he and his fellow counsel had recently obtained from the Government and had been unable to analyze. On December 3, 1976, prior to the jury selection, the attorneys representing Defendant Savage stated that, while they did not oppose the motion, they were prepared to begin the trial. Counsel for Defendants Wiggins and Woodson joined in the motion for continuance. The motion for continuance was denied but the Court agreed not to begin the trial prior to Monday, December 13, 1976. (Vol. I, Tr. 4-21). The moving Defendants maintain that it was error to refuse the request for a continuance to the January list.

 The Court is of the view that the 10-day lapse between the denial of the motion and the commencement of trial provided adequate time for counsel to prepare the case. The quality of the defense was not perceptibly impaired by the alleged inability of counsel to digest the relevant factual information or to pursue interviews of potential witnesses. Responsibility for the snowballing of their workload prior to trial must be borne, at least in part, by original counsel for Shepard and Wiggins. The Court routinely grants motions for the appointment of additional counsel in murder cases. See 18 U.S.C. ยง 3005. Wiggins' primary counsel was appointed on September 30, 1976 and Shepard's on October 5, 1976. However, Shepard's motion for the appointment of additional counsel was not filed until November 15, 1976 and Wiggins' not until November 22, 1976. In contrast, principal counsel for Savage, who was appointed on September 30, 1976, filed his motion for additional counsel on October 14, 1976. Thus, the attorneys first appointed to represent Wiggins and Shepard were without the aid of another lawyer for well over one month. Undoubtedly, work which could have been performed during that time by a second attorney, but which was left undone, swelled the size of the task confronting counsel just prior to trial and helped prompt the motion for continuance.

 The four Defendants are Black and representations were made that the evidence would have racial overtones. Consequently, in addition to the regular questions presented by the Court to the panel as a whole, each prospective juror was subjected individually to 20 voir dire questions, propounded by a defense counsel, the purpose of which was to identify those who were racially prejudiced. The Defendants now contest the Court's failure to ask several individual voir dire questions concerning racial attitudes, prejudice against witnesses who are convicted felons, and possible relationships with law enforcement officers and employees of the Lewisburg Penitentiary.

 The challenge to the exclusion of the two racial questions is an affront. For two full days, including December 3, 1976, which ran from 10:00 A.M. until 5:20 P.M. with 28 minutes for lunch, prospective jurors were intensively and exhaustively interrogated as to their possible prejudice. The Court is of the view that it tolerated an inquisition far in excess of what is required by law. See Ristaino v. Ross, 424 U.S. 589, 96 S. Ct. 1017, 47 L. Ed. 2d 258 (1976) and Ham v. South Carolina, 409 U.S. 524, 525, n. 2, 93 S. Ct. 848, 35 L. Ed. 2d 46 (1973). To maintain that a new trial should be granted because two particular questions requiring narrative answers were not asked is frivolous.

 The Court routinely denies requests by defense counsel to ask jurors whether they would be less likely to believe a witness who is a convicted felon. Laymen do not know the intricacies of the law and, until they are instructed by the Court, it is unfair for them to be expected to respond to such a question. Furthermore, all jurors are asked whether they will adhere to the instructions given them by the Court, (Vol. I, Tr. 58), which include, where appropriate, a charge on the weight which the jury may give to a witness's prior conviction of a felony. Defense counsel's reliance on the exclusion of this question as a ground for a new trial is somewhat bizarre. But for a doctor and several prison guards, whose testimony was, with the exception of an identification of Defendant Wiggins, little more than background, all witnesses in this case were convicted felons.

 The indiscretion with which counsel have pursued the motion for new trial is illustrated by the attack on the Court's exclusion from the individual voir dire of two questions probing jurors' relationships with prison personnel and law enforcement officers. On December 2, 1976, the Court inquired of the jury panel:

 
"Have you or has any member of your immediate family or any of your close personal friends ever served as law enforcement officers?" (Vol. I, Tr. 53).

 A few moments later, the Court also inquired:

 
". . . is there any member of your immediate family or any close friend of yours who works at the Federal Penitentiary in Lewisburg?" (Vol. I, Tr. 61).

 Several affirmative answers to the first and one to the second question were received. The suggestion that these questions, which jurors routinely answer without embarrassment, should have been made a part of the individual voir dire is without merit.

 V. Limitation on Testimony re Prior Stabbing.

 Earlier in the day of the Silver murder, a Black inmate named Scipio was stabbed, although not fatally. The Defendants sought to cross-examine several Government witnesses with respect to their involvement in the Scipio stabbing to establish their hostility to some or all of the Defendants, to demonstrate the witnesses' own involvement in the stabbing and the possible immunities from prosecution or administrative discipline which they had received as a result of their testimony, to expose the witnesses' allegedly calculated selection of the Defendants as individuals who would appear to have been taking revenge for Scipio, and to portray one or more of the witnesses as the assailants of Mark Silver, who had been a witness to the Scipio incident.

 Citing the reasoning of a recent Pennsylvania Supreme Court case which ordered a new trial for former United Mine Workers President and convicted murderer, W. A. Boyle, the Defendants contend that the Court erred by precluding the proof of facts tending to show commission of the Silver murder by someone other than the accused. Commonwealth v. Boyle, 470 Pa. 343, 368 A.2d 661, 669 (1977). Assuming arguendo that the reasoning of Boyle would be adopted by the Third Circuit or the United States Supreme Court, the circumstances of this case, as chronicled below, do not fall within the scope of that holding.

 In its examination of Government witness Cutler, the defense attempted to demonstrate a motive for an alleged killing of Silver by Luera. At side-bar, Mr. Humphrey, co-counsel for Savage, argued:

 
"Now we think we can show that Mr. Luera was so actively involved in the [Scipio] stabbing and that would have also given Mr. Luera a motive to assault or kill Mr. Silver because Mr. Silver, according to this man's [Cutler's] previous statement, was attempting to stop the Scipio stabbing and witnessed the entire thing." (Vol. VI, Tr. 24.)
 
* * *
 
"Luera had this very active part, and I think that the evidence, if not from this man than [sic] from others, will indicate that when Scipio was stabbed, it was felt he was going to die. In other words Mr. Silver, as far as Mr. Luera is concerned, witnessed him participating in a murder of an inmate. And certainly that would have given Mr. Luera motive to do harm to Mr. Silver. These are matters of argument. I think that at this point the situations are closely enough involved that we have to get into it." (Vol. VI, Tr. 25).

 A few moments later, the following exchange occurred:

 
"THE COURT: Well is Scipio alive?
 
MR. HUMPHREY: Yes.
 
THE COURT: Is he in ...

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