United States of America, Plaintiff-appellee, v. David E. Delaney, Defendant-appellant.united States of America, Plaintiff-appellee, v. Paul Glivings, Defendant-appellant, 829 F.2d 37 (4th Cir. 1987)

David E. Delaney and Paul Glivings appeal their convictions for assault on one of their fellow inmates at the Lorton Reformatory. They challenge the admission of certain evidence, the government's peremptory strike of a black juror, the jury's impartiality, the sufficiency of evidence, and the trial court's denial of a motion for new trial based on newly discovered evidence. Finding no merit in these challenges, we affirm the convictions.

On February 19, 1985, inmate Eric Pratt was stabbed as he lay in his bunk at the Lorton Reformatory in Lorton, Virginia. After the stabbing, Delaney was taken into custody. Glivings was later arrested after a metal 'shank,' similar to the one used in the assault, was found near his bed. Appellants were each subsequently charged with violations of 18 U.S.C. §§ 2, 113(a), (f), assault with intent to murder and assault resulting in serious bodily injury.

Delaney and Glivings were tried before a jury on November 24, 1986. During the selection of the jury, the prosecutor used a peremptory strike to exlude a black venireman from the jury panel. Appellants did not object to this strike at trial. Appellants did object to the admission of the metal shank found near Glivings' bed. The trial judge admitted the shank into evidence. After testimony from several witnesses to the events at Lorton, including identification of both appellants by Pratt and identification of Glivings by an inmate who was near the scene, appellants were both convicted.

Appellants subsequently made two motions for a new trial. First, they attempted to show that a juror was acquainted with the victim, Pratt. Second, they introduced testimony from inmate George Carter, who stated that he alone had assaulted Pratt. The trial judge denied both motions, finding that appellants had failed to prove juror bias and that Carter was not a credible witness. This appeal followed.

Delaney and Glivings first contest the admission at trial of a metal shank found near Glivings' bed. They claim that admission of the shank was improper because the government failed to present sufficient evidence that the shank introduced was the same shank used in the assault. We disagree, and find that admission of the shank was within the broad discretion to be accorded a trial judge's evidentiary rulings. See e.g., Hamling v. United States, 418 U.S. 87, 124-25 (1974); United States v. Zandi, 769 F.2d 229, 237 (4th Cir. 1985).

This court's decision in United States v. Cunningham, 423 F.2d 1269, 1275-76 (4th Cir. 1970), clearly supports the trial judge's admission of the shank in this case. The testimony of Officer Nelson and Special Agent Lang sufficiently established that the shank admitted was the one found near Glivings' bed. Pratt testified that the shank admitted was similar to the shank used in the assault. This testimony as to similarity provided a sufficient foundation for admission of the shank. Id. Doubts concerning whether the admitted shank was the same shank used in the assault go to the weight of the evidence rather than to its admissibility.

Appellants' constitutional claim concerning the government's use of a peremptory strike to remove a black venireman from the jury panel must fail because they did not object to the strike at trial. Batson v. Kentucky, 106 S. Ct. 1712 (1986), established that a defendant can make out a prima facie case of unconstitutional discrimination by showing that he is a member of a cognizable racial group, that the prosecutor has used peremptory challenges to exclude members of the defendant's racial group from the jury panel, and that the circumstances raise an inference that the prosecutor has used his peremptory challenges to exclude veniremen from the petit jury on account of their race. Id. at 1723. The Batson opinion clearly contemplates, however, that such a claim by the defendant must be raised at the trial level. In administering the standard that Batson established, the Court intended that the 'trial court should consider all relevant consequences.' Id. If defendants were allowed to raise a Batson objection for the first time on appeal, the crucial opportunity for review by the trial judge who observed the voir dire would be lost. Under Batson, ' [o]nce the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors.' Id. The defendant, however, must make the initial showing at the time the peremptory strike is made.

Appellants' challenge to the sufficiency of the evidence must fail if 'after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). It is also settled that where there are conflicts in the testimony, 'it is for the jury and not the appellate court to weigh the evidence and judge the credibilty of the witnesses.' United States v. Fisher, 484 F.2d 868, 869-70 (4th Cir. 1973), cert. denied, 415 U.S. 924 (1974). Applying this standard, we find that the evidence presented at trial was sufficient to support the convictions of Delaney and Glivings.

Delaney was identified by Pratt as one of his two assailants. Inmate Coleman also testified that the man accompanying Glivings was a 'short guy.' The record shows that Delaney stands approximately five feet, six inches tall. Finally, Officer Williams testified that he watched Delaney move back to his bed from a spot near where Pratt had thrown a bed after being stabbed, and that Delaney then pretended to be asleep. Viewing this evidence in the light most favorable to the government, a rational trier of fact could have found Delaney's guilt established beyond a reasonable doubt.

Glivings was specifically identified by both Pratt and Coleman as one of the assailants. Pratt testified that the shank found near Glivings bed was similar to the shank used in the attack. Any conflict in the testimony concerning Glivings' conversations with Sergeant Bradford and Officer Williams was for the jury to resolve, and a rational jury could unquestionably have concluded that Glivings conversed with Sergeant Bradford before the assault, participated in the assault, and then approached Officer Williams before he heard the bed crash. Viewing all of the evidence in the light most favorable to the government, a rational trier of fact could have found both Delaney and Glivings guilty beyond a reasonable doubt.

Delaney and Glivings next challenge the verdict below on the basis of juror bias. They point to post-trial testimony by Pratt that he recognized juror Michael Timms at the trial as a frequent customer at the restaurant where Pratt worked. The trial judge conducted a post-trial hearing at which he heard testimony from Joseph Nordelli, the owner of the restaurant, and from Pratt. This testimony all indicated that although Pratt may have recognized Timms, Timms neither knew nor spoke with Pratt prior to the trial.

The trial judge properly provided 'a hearing in which the defendant has the opportunity to prove actual bias,' Smith v. Phillips, 455 U.S. 209, 215 (1982). The court's discretion on matters of juror integrity is broad. See United States v. Johnson, 657 F.2d 604 (4th Cir. 1981); United States v. Jones, 608 F.2d 1004 (4th Cir. 1979), cert. denied, 444 U.S. 1086 (1980). The facts provide no basis for a finding of juror bias, and the trial judge was well within his discretion in finding that Timms was a sufficiently impartial juror.

Delaney and Glivings base their final challenge on the post-trial 'confession' of inmate George Carter. Again, we hold that the trial judge acted within his discretion in rejecting Carter's testimony.

During his testimony, Carter was unable to tell the court what type of weapon he had used in the assault. He stated that he was a friend of the defendants. Carter further made contradictory statements concerning his knowledge of the charges against Delaney and Glivings and made clearly false statements about his past criminal record. On the basis of this testimony and Carter's demeanor on the stand, the trial judge found Carter not a credible witness and denied the new trial motion. The trial judge's findings are not to be disturbed on appeal 'except for the most extraordinary circumstances and unless it clearly appears they are not supported by any evidence.' United States v. Carmichael, 726 F.2d 158, 160 (4th Cir. 1984). The trial court's decision here fell well within that standard, as there was ample evidence that Carter's testimony was not 'of such a nature that a new trial would probably produce a new result,' United States v. Lott, 751 F.2d 717 (4th Cir.), cert. denied, 470 U.S. 1087 (1985).

The judgments of conviction are hereby

AFFIRMED.