
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1718                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  MILLER M. BULLARD,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                           Selya and Boudin, Circuit Judges,                                             ______________                             and Carter,* District Judge.                                          ______________                                 ____________________            Warren R. Thompson, by Appointment of the Court, for appellant.            __________________            Kevin J.  Cloherty, Assistant  United States  Attorney, with  whom            __________________        Donald K. Stern, United  States Attorney, was on brief  for the United        _______________        States.                                 ____________________                                   October 20, 1994                                 ____________________                                    ____________________        *Of the District of Maine, sitting by designation.                 BOUDIN, Circuit Judge.   On July 20, 1992, an  armed man                         _____________            held  up  the Baybank  branch  at  285  Huntington Avenue  in            Boston,  and  escaped  with  approximately  $421.     Shortly            thereafter,  law  enforcement   agents  arrested   defendant-            appellant Miller  M. Bullard, who  was then charged  with one            count  of armed  robbery  of a  federally insured  depository            institution, 18  U.S.C.     2213(a), (d).   A jury  convicted            Bullard on October 22, 1992.  He has appealed his conviction.            We affirm.                 Bullard's trial lasted three days, and for a significant            portion of that  time, he represented himself.   The district            court  had  originally  appointed  counsel for  him,  but  he            objected  to  that appointment,  and  the  court granted  his            motion  to proceed  pro se.   The  court also  appointed Owen                                ______            Walker  of the  federal  public defender's  office to  act as            standby  counsel.   Walker sat  with Bullard  at  the defense            table throughout trial.  Walker presented opening and closing            arguments,  and  he also  cross-examined  the key  government            witness.                 Bullard's  central claims  of error  concern issues  not            raised at trial.  With  one possible qualification, we review            these claims  for plain  error, which encompasses  only those            errors that are both "plain" and involve either a miscarriage            of   justice  or   deviations   that  seriously   impair  the            fundamental   fairness  and  basic  integrity  of  the  trial                                         -2-                                         -2-            proceedings.  United States v. Olano, 113 S. Ct. 1770 (1993);                          _____________    _____            United  States v. Griffin, 818 F.2d 97, 100 (1st Cir.), cert.            ______________    _______                               _____            denied, 484 U.S. 844 (1987).              ______                 Bullard   first  contends   that  even  though   he  was            representing himself, he was left out of a conference between            counsel and the judge concerning the possible inattentiveness            of  one   juror,  thus   violating  his   right  to  pro   se                                                                 ________            representation.  During the trial, the district judge noticed            that on one day  an individual juror appeared to  be somewhat            less attentive than  normal.  When  the jurors were  excused,            the district judge asked  the juror in question to  remain in            the courtroom and then questioned  the juror, in the presence            of the prosecutor and Walker.                 The juror  acknowledged that  the night before,  she had            worked a  double  shift  and  was somewhat  tired,  but  also            asserted  that she was perfectly  capable of continuing.  The            court  then excused the  juror from the  room and effectively            invited the  prosecutor and Walker  to object to  the juror's            continuation  if dissatisfied  with  her  answers.    Neither            counsel objected  to the juror's continuing.   Walker himself            noted that the juror had seemed to be "on the ball."                 The record  does not reveal whether Bullard  was in fact            present during the conference,  which was conducted in court.            Bullard now  asserts that he  was absent for  this conference            (his brief cites only to a telephone call between Bullard and                                         -3-                                         -3-            his appellate counsel).   It is possible that the  marshal or            court security  officer removed Bullard before  the juror was            questioned and also possible that some or all of the colloquy            occurred  at  sidebar.   The  transcript is  silent  on these            points.                 Since the record is unclear on this factual issue, there            certainly  is no "plain" error.   Of course,  one might argue            that  it is  unfair  to hold  this  lack of  clarity  against            Bullard  since  he himself  may not  have  been aware  of the            episode  until he  reviewed  the trial  transcript after  his            conviction.   Still, if the issue were to be properly pressed            on appeal,  Bullard or his  appellate counsel ought  at least            have  asked the district court to supplement the record.  See                                                                      ___            Fed. R.  App. P. 10(e) (allowing  supplementation of district            court record to correct mistake or omission).                 Out  of  an abundance  of  caution,  we have  considered            whether Bullard  was actually prejudiced,  even assuming that            he was absent during the episode.  Of course, a defendant  is            normally entitled  to be  present during a  court proceeding,            and even more so when acting pro se.  But here Bullard was at                                         ______            least  represented by  standby counsel  at the  proceeding in            question.   Given that the  record does not  show Bullard was            absent,  we  think  that it  goes  as  far  as required,  and            arguably  beyond, to  ask  whether his  possible absence  has                                                    ________            created demonstrable or likely prejudice.                                         -4-                                         -4-                 Here,  we see no prejudice  at all.   A sharp-eyed trial            judge, commendably attentive, noticed some signs that a juror            might  not have been fully  alert.  Sua  sponte he questioned                                                ___________            the  juror who denied any illness, explained that she had had            a late night, and in substance asserted her wish to continue.            Probably,  the attention  of  an average  juror, perhaps  all            jurors,  drifts  at some  point during  a  trial.   The trial            judge,  who had  seen the  juror's actions,  felt no  need to            press for or order her removal; and neither counsel asked for            it.                 There is nothing  to show that the juror  missed crucial            evidence  or  exhibited  serious  or  prolonged  inattention;            Bullard says  otherwise in his brief but  provides nothing to            support the  assertion.  The evidence  against Bullard, which            we need not describe in detail, was substantial;  it included            an eye witness identification of him as the bank robber, made            by a teller who had been standing in the teller booth next to            the  one  robbed.   Any  notion  that  Bullard  was convicted            because  the  juror in  question  was not  excused  is highly            implausible.                 Bullard's other contentions relate  to a brief encounter            with  a police  officer before booking.   Prior  to Bullard's            initial  booking photograph, Detective  Carroll of the Boston            Police  Department took a picture of  him because Carroll had            noticed at the arrest  that Bullard wore a baseball  hat with                                         -5-                                         -5-            the brim cocked up--a style that Carroll felt was unusual and            one  depicted in the photographs derived from the film in the            bank  surveillance camera.  Bullard refused to put his hat on            when Carroll asked  him to, but  then relented and  Bullard's            photograph was taken with his hat on.                 During  Carroll's  trial  testimony, he  mentioned  that            Bullard  had refused  to  put his  hat  on, and  Bullard  now            alleges that such testimony  violated his right against self-            incrimination.   The  prosecutor also  alluded  to  Bullard's            refusal  during her  closing argument.   In  addition, before            trial   the  prosecutor  told  the  court  that  she  had  no            statements  of  the  defendant  to turn  over  in  discovery;            Bullard now alleges that this was untrue (because his refusal            was  a statement)  and constituted  a violation  of discovery            obligations and misconduct by the prosecutor.                 None  of these  matters  comes anywhere  close to  plain            error.  We start with Bullard's claim that his refusal to put            on a hat  was a statement that the  prosecutor had to produce            before  trial.  Bullard's refusal to put  on his hat does not            fit under the literal language of Fed. R.  Crim. P. 16, which            requires the government to turn  over statements only if they            were made in the course of  interrogation.  The rule has been            so  construed by  the courts.   See,  e.g., United  States v.                                            ___   ____  ______________            Reeves, 730  F.2d  1189  (8th  Cir. 1984).    Certainly,  the            ______            failure to disclose  in advance Carroll's testimony as to the                                         -6-                                         -6-            refusal does not plainly violate any  cited discovery rule or                             _______            order.                 Bullard  also  claims that  it  was  misconduct for  the            prosecutor to  advise the court before trial  that "there are            no statements of the  defendant" and then to elicit  at trial            Bullard's refusal.   Actually, it  is not clear  that Bullard            did express his refusal  in words, but there is  certainly no            indication  of a conscious  deception by the  prosecutor.  If            Bullard was  surprised by the detective's  testimony and felt            he  had been misled, he was free  to raise the point at trial            and ask for a brief delay or continuance.                     Bullard's   self-incrimination    claim   is   similarly            unavailing.   Bullard  properly  does not  complain on  self-            incrimination  grounds  about  the government's  use  of  the            photograph showing him in his hat.  It is well  accepted that            a  defendant's Fifth  Amendment right  is not  compromised by            such physical evidence; a defendant can be  obligated to give            blood, stand  in a  lineup, provide handwriting  examples and            cooperate  in other  similar  fashions.   E.g., Schmerber  v.                                                      ____  _________            California, 384  U.S. 757 (1966); Gilbert  v. California, 388            __________                        _______     __________            U.S. 218 (1967).    What Bullard appears  to argue instead is            that his initial refusal  to cooperate by putting on  his hat            amounts  to  using  his  own words--namely,  his  refusal  to            cooperate--against him as evidence of consciousness of guilt.            The prosecutor did  not urge this  inference and referred  to                                         -7-                                         -7-            the  refusal primarily  in connection  with an  argument that            Bullard  and  the robber  wore their  hats  in the  same way.            Still, the inference is pretty obvious.                 In  many circumstances,  a defendant's refusal  to speak            with the police or answer questions is not allowed to be used            against him.  The concern is not that the silence or words of            refusal are  themselves compelled testimony, for  the silence            or  words of refusal are not compelled.   Rather, the fear is            that  using the  refusal  against the  defendant would  place            undue and inappropriate pressure upon him to surrender his or                                    ________            her constitutional right to remain silent.  In some cases, an            inference from silence  could also be unfair  for a different            reason;  the Supreme  Court has said  that a  Miranda warning                                                          _______            carries the implication that there is no penalty for silence,            and  the  defendant may  reasonably  rely  on the  assurance.            Doyle v. Ohio, 426 U.S. 610, 618 (1976).            _____    ____                 The present  case  is quite  different.   Bullard had  a            Fifth Amendment right  to remain  silent but he  had no  such            right  to refuse to don a hat,  stand in a lineup, or provide            fingerprints.    Since he  had no  such  right, then  to draw            inference of  guilt from his refusal  to cooperate physically            does  not place  improper  pressure  on  him to  surrender  a            protected right.  Nor does a Miranda warning promise or imply                                         _______            that a defendant can with impunity refuse to put on a hat.                                         -8-                                         -8-                 Of course, in some situations a  refusal to cooperate by            providing  physical   evidence   may  be   defended   because            cooperation   would  itself   reveal   the  content   of  the            defendant's mind.   See, e.g., Fisher  v. United States,  425                                ___  ____  ______     _____________            U.S. 391, 410 (1976); In re Kave, 760 F.2d 343, 358 (1st Cir.                                  __________            1985).   But this case involves  no such danger.   As for the            logic  of the inference, an  inference based on  a refusal to            cooperate where cooperation itself can be compelled and would            be  expected from an innocent person, is no different than an            inference of guilt based on flight to avoid arrest.                 We  do  not want  to  be  understood  as giving  blanket            approval to  testimony of a defendant's  refusal to cooperate            in  physical  activities.   An  inference of  guilt  might be            irrational in some circumstances  (e.g., a defendant refusing                                               ____            to  submit  to  a  dangerous operation  to  recover  evidence            against  him).   There may  be a  range of other  cases where            testimony or comment about a defendant's refusal to cooperate            in   physical  activities  could  be  unduly  prejudicial  or            threaten  constitutional rights.   But  no such  situation is            apparent here, and there is certainly no plain error.                 Affirmed.                 ________                                         -9-                                         -9-
