United States v. Mark Douglas Odom, United States of America v. Joyce Geraldine Beach, United States of America v. Benny Carol Dyson

HARRISON L. WINTER, Chief Judge,

concurring:

I concur in the judgment and in the majority opinion, except for the portion of Part IV dealing with the receipt of unsworn and incompetent testimony. I agree that defendants waived the errors in this regard committed by the district court. *119 Since my reasoning as to the nature of the waiver differs from that of the majority, however, I state it separately.

I.

The record is not clear as to when defendants first learned that the residents of the rest home would be called as government witnesses. For all that appears, defense counsel first received this knowledge at a conference in chambers immediately before the trial began, or, more probably, at or around the luncheon recess during the first day of trial. If I read the record correctly, counsel cannot be faulted for delay in formally requesting that the competency of the witnesses to testify be explored out of the presence of the jury.

I agree with the majority that the district court had discretion to determine the competency of the witnesses in the presence of the jury. It was a perilous course for the district court to follow, however, because the district court permitted some of those of the unsworn witnesses who were able to speak not only to answer questions reflecting their competency to testify but also questions going to the merits of the prosecution. The government was permitted to ask some of the witnesses about their recollection of voting and the defense was permitted to show that some of the witnesses wanted to vote the way defendants allegedly illegally caused them to be recorded as voting. The district court ruled that some of the witnesses were not competent to be sworn.

Were there nothing more on this issue, I would be inclined to hold that the district court exceeded its discretion in declining to examine the competency of these witnesses to testify, since the examination proceeded as it did, in camera.

II.

While I agree with the majority that as a general proposition of law an objection to the competency of a witness to testify can be waived, I do not agree that waiver occurred here as found by the majority. When the district judge precipitated the objection to competency on the day after the unsworn witnesses had testified, he made it quite clear that if the objection were pressed, he would deny it and simply recall the witnesses to be sworn and, presumably, to repeat their prior testimony. Understandably, counsel withdrew the objection because, as I have indicated, the unsworn witnesses gave substantive testimony relevant to the crimes with which defendants were charged.

I do not think that withdrawal of the objection under these circumstances constituted waiver. Clearly counsel was in a “catch-22” situation. Counsel could withdraw the objection or else run the risk that the testimony unfavorable to defendants would be repeated and the prejudice to defendants magnified by having the witnesses recalled to repeat their testimony under some ostensible form of oath. At the same time, the failure to swear these witnesses was not defendants’ real objection; rather, it was that these witnesses were so incompetent that they could not genuinely be sworn. Counsel was compelled to withdraw their objection to the unsworn witnesses in order to prevent the repetition of the witnesses’ incompetent testimony before the jury. To me, the “strategic decision to withdraw their objection” was sufficiently coerced that I cannot treat it as a free and voluntary act.

I do, however, conclude that there was a subsequent waiver of the objection. In its instructions to the jury, the district court stated:

You have heard the testimony of most of the residents of the nursing home whose absentee ballots were alleged to have been sent to the Elections Board in the November, 1982, election. You may be wondering whether the obvious mental deficiencies of these residents should make any difference. Some of those people were in such condition that they could not understand the meaning of the oath and, therefore, the Court did not ask that they be sworn, since they could not respond to an oath. What you must determine, as with any other witness, is *120 whether their testimony is believable. Did he or she understand the questions. Did he or she have a good memory. Is he or she telling the truth. Because people with mental deficiencies may not fully understand what is happening here, it is up to you to decide whether they understood the seriousness of their appearance as a witness in a criminal trial. In addition, mentally deficient persons may be influenced by the way questions are asked. It is up to you to decide whether they understood the questions asked of them. Keep this in mind when you consider their testimony, if any, as given in the responses which were made by them, if any.

Although this instruction may be read to convey the district court’s view that the unsworn witnesses were unbelievable, the jury clearly also was told that it was free to rely on the testimony of unsworn witnesses in convicting (or acquitting) defendants.

Surprisingly enough, there was no objection to the charge. As far as the record reflects, there had been no prior request by defendants for the district court to instruct the jury to disregard the testimony of unsworn witnesses. For all that appears, if such a request had been made, it might have been granted.

We may not consider issues not preserved for appeal, except in the event of plain error. Fed.R.Crim.P. 52. Since, as established in the majority’s opinion, the competency of unsworn witnesses to testify is an objection that can be waived, I would not find plain error by the district court. Accordingly, I join the majority’s conclusion that defendants did not preserve their objection to the receipt of the testimony of the unsworn witnesses.