James Melvin Lucas, Appellant, v. United States of America, Appellee, 325 F.2d 867 (9th Cir. 1963)

The defendant, James Melvin Lucas, appeals from a judgment of the district court convicting him of escaping from the Federal Correctional Institution at Lompoc, California, in violation of the Federal Escape Act [18 U.S.C.A. § 751].¹  He urges two grounds for reversal:

First, the insufficiency of evidence to support the finding that his departure from custody was wilful, and second that he was denied due process of law because of the bias and prejudice of the trial judge who sat as the finder of fact.² 

Defendant is not entitled to have this court review the record to determine whether the evidence was insufficient in the particular claimed. He did move for an acquittal at the close of the government's case, but when that motion was denied he introduced evidence in his own behalf, thus waiving any error in that ruling. Maulding v. United States, 257 F.2d 56 (9th Cir. 1953); Anderson v. United States, 253 F.2d 419 (9th Cir. 1952); Powell v. United States, 35 F.2d 941 (9th Cir. 1930). And since he did not renew the motion at the conclusion of all the evidence, he failed to secure a ruling that he could challenge on appeal. Ege v. United States, 242 F.2d 879 (9th Cir. 1957); Hardwicke v. United States, 296 F.2d 24 (9th Cir. 1961).³  "It is true that an appellate court may in its discretion notice errors in a trial of a criminal case not properly raised at the trial, when a refusal to do so would shock its judicial conscience and operate as a palpable miscarriage of justice (cases omitted); but this is a power rarely exercised, and never except for the purpose of preventing a judicial wrong." Bilboa v. United States, 287 F. 125 (9th Cir. 1923). There is nothing in the record which would require this court to exercise its inherent power, expressly recognized by Rule 52(b), supra, n. 3. We can make this observation with complete assurance because due consideration of defendant's second point has necessitated recourse to various portions of the trial transcript. Several of those passages contain evidence from which the trier of fact might have validly rested the finding of defendant's guilt beyond a reasonable doubt.

When the case was called the trial judge allowed defendant to read a written statement that he (the defendant) had previously prepared. Immediately afterward defendant waived a jury and the trial commenced. The testimony given by the defendant was to the effect that he and two other inmates of the Institution had surreptitiously brewed an alcoholic concoction known as "raisin jack"; that on the day of the alleged escape the three of them were members of a group who were working outside the walls of the institution under the supervision of a guard; that during the noon meal period they drank a considerable quantity of this liquor and, in addition, he also chewed a piece of root of the Jimson weed, a noxious plant, all of which rendered him so intoxicated and narcotized that he was unaware that he ran away from the guard later in the afternoon.⁴ 

This evidence, tending as it did to show a lack of intent to flee from custody, was at considerable variance from his prepared statement, which in substance was that his motive for leaving the Institution was a fervent desire to return to the district court and explain his innocence to the judge, in the hope that the latter would annul an unjust and illegal sentence. This written statement was neither introduced nor offered in evidence. The defendant seeks to demonstrate from colloquies between court and counsel during the latter's argument following the conclusion of evidence and from statements made in response by the judge in the course of his oral summation "that the trial court was unable to erase the memory of appellant's statement from its mind." On that premise the appellant argues that "Having a firm belief, at the close of the reading of the statement, that appellant knew what he was doing when he left Lompoc, the court listened to the defense, as required by law, but did not weigh the evidence presented in court. Instead the court `found' the fact in accordance with its previously acquired belief that appellant's defense was, if not a sham, not at all adequate."

The government points to the fact that defendant did not seek to disqualify the judge on the grounds of his bias or prejudice by filing a timely affidavit "as required" by the provisions of 28 U.S. C.A. § 144.⁵  As we understand it, its argument is that this statute provides the exclusive method of raising the issue.

The proposition is well settled and this court has often held that "To disqualify the judge, timely objection should * * * been made; if not so made, it is waived." Kramer v. United States, 166 F.2d 515, 518 (9th Cir. 1948); see also Chessman v. Teets, 239 F.2d 205 (9th Cir. 1956) rev'd on other grounds, 345 U.S. 156, 77 S. Ct. 1127, 1 L. Ed. 2d 1253 (1956); Taylor v. United States, 179 F.2d 640 (9th Cir. 1950). However, the Sixth Circuit, in Knapp v. Kinsey, 235 F.2d 129, 131 (6th Cir. 1956) declared that "* * * Section 144, Title 28 U.S.Code was not applicable to (a) case in which the claimed bias or prejudice was first disclosed during the trial. Under the circumstances the remedy can not be by a change of judges during the trial; it necessarily becomes a matter of alleged prejudicial error and for correction by the Court of Appeals." And this court, recognizing that "One of the fundamental rights of a litigant under our judicial system is that he is entitled to a fair trial in a fair tribunal, and that fairness requires an absence of actual bias or prejudice in the trial of the case" [Knapp v. Kinsey, 232 F.2d 458, 465 (6th Cir. 1956)] has considered the question ["q]uite apart from the efficacy of the affidavit of prejudice * * *." Chessman v. Teets, supra, 239 F.2d at 215; see also Taylor v. United States, supra.

But turning to the record we are unable to find anything that would tend in the slightest degree to support the very serious accusation appellant makes against the trial judge. We do not set out the remarks, because to do so would simply serve to unduly lengthen this opinion and add nothing. In substance, what appears is that during the course of defendant's argument, the court several times interrupted, in order to express disagreement with counsel's version of the evidence and to call attention to discrepancies in testimony of the witnesses (particularly the defendant's) and to point out areas where this evidence was in conflict. In addition, the court asked counsel's views concerning permissible inferences. Then, following the arguments, the court purported to quote certain of the testimony given by the defendant himself as supporting the finding of guilt.

All the questions and observations, as well as the inquiries, were entirely pertinent to the case and, while the practice might have been improper had there been a jury, here, as already noted, the trial judge, by virtue of plaintiff's waiver, was constituted and acting as the trier of fact. Nor do we perceive in the court's appraisal of the evidence the slightest suggestion of a dogmatic or warped view, inflexibly or otherwise conditioned by the gratuitous statement the defendant offered. Counsel weaves an ingenious argument and, by comparing portions of the evidence with what the court said, makes it appear that the finding of guilt was without a valid basis; it is then urged that the defendant's statement would supply this deficiency and therefore the court went outside the record in reaching its conclusion. The principal vice of the argument lies in what it ignores. A broader look at the record reveals both conflicts in testimony and the presence of facts which would permit varying factual conclusions. And the record that appears is that the finder of fact resolved many of the conflicts in evidence adversely to the defendant and chose inferences other than those that were favorable. Naturally, the defendant is aggrieved by the sentence imposed upon him, but he has shown no valid legal reason why the judgment should be reversed. Accordingly the judgment is affirmed.