*1 194
major A parties. permits a write-in ballot effectively to his individual- voter exercise BAKER, Appellant, William A. constitutionally ly protected franchise. v. not and The use of write-in ballots does STATES, Appellee. UNITED dependent candidate’s should not be No. 7244. . . chance of success. . Appeals. District of Columbia Court no sаtis “The defendants have offered Argued 16, Jan. factory explanation prohibition of their for Aug. 13, Decided argument [legal]
write-in ballots their prohi A ... blanket untenable. write-in ballots against bition use of qualified right electors
denies process
freely participate in electoral protection’ by guaranteed ‘equal the Fourteenth Amendment.”
clause Rhodes, Party F. Labor v. 290
Socialist 983, (S.D.Ohio) 987
Supp. (three-judge part,
court), aff’d to this modified in grounds sub nom.
part on other Williams Rhodes, 23, 5, 89 S.Ct.
v. 21 L. (1968).12 24
Ed.2d relief, however, fashioning
The would better to the which has left trial court A yet opportunity so. do
remedy should opinion consistent with this devised the trial court. proceedings for further con-
Remanded opinion. with this
sistent
express
right
Wil-
freedoms.”
the First Amendment
12. Americans
treasure
32,
Rhodes,
preferences
supra,
political
of the
v.
U.S.
means
liams
their
Party
Rhodes,
v.
аt 11.
Socialist Labor
ballot.”
may
printing
provides
legislatures
supra
at 986:
prohibit
participation
the use
limited to those
is not
an official ballot
Political
major
they
any other,
restrict
cannot
of one
but
adhere
tenets
who
candidates,
political parties,
who
all citizens
choice
[voter]
but includеs
elector
support
prohibit
voting
publicly
for a
him
wish to
demonstrate
nor
theory.
political
appear
or
candidate
certain
of
whose names
than those
good chance of
need
have
[McCreary,
[O]ne
Law
American
ficial ballot.
winning
be a
for office.
Just
candidate
(4th
1897)].
See
of Eleсtions
right
protects
Village Wappinger’s
as the Constitution
People
President,
v.
express
freely,
themselves
(1895) ;
individuals
Falls, 144 N.Y.
N.E. 641
permit
these same
does the Constitution
People
Shaw,
so
Washington, appointed by court, D. this appellant. for Johnson, A. Atty., Asst. U. S. Julius Titus, Jr., whom Harold H. U. S. Atty., filed, at the time the brief was John Terry A. Raymond Banoun, Asst. U. Attys., brief, S. appellee, were on the Garey Stark, Atty., G. Asst. U. S. also en- appearance tered an appellee. GALLAGHER, Before YEAGLEY HARRIS, Judges. Associate YEAGLEY, Associate Judge: This is an from a conviction of manslaughter (D.C.Code 22-2405) after a acquitted degree carrying second murder and a dangerous weapon (knife).1 errоrs Several are assigned which will discussed, Based on our consider- infra. tion applicable of the record in the law, case for a reverse new trial con- opinion. sistent September 10, 1972, At about a. m. on T. entered a Willie Simon restaurant ac- companied by Ivory Virgil. Appel- Miss lant, already restaurant, who wаs in the manslaughter degree 1. The conviction was as a lesser offense of included second murder. present the crime then it peri- at the scene of did not know Within short Simon. fight time had broken out between od of instruction then went on: There are conflicts appellant.
Simon
fight
evidence as to
started
who
hand,
if,
thе other
after a fair
"On
and used
and as to whether
of all the facts
and full consideration
fight
against
After the
knife
Si-
Simon.
*3
evidence, you
and circumstances in
premises,
left
left
mon
the
proved beyond
the
that
Government
shortly
time later
thereafter. A short
Si-
a reasonable doubt that
the Defendant
mon was
dead about a block
found
at
present
was
at the time when and
the
twenty-
He had
the restaurant.
suffered
place
charged
the
was
where
offense
wounds,
stab
of which were con-
three
two
committed, then
the De-
you must find
sidered fatal.
(Emphasis
original.)
in
guilty.”
fendant
part
Appellant claims that
of
Tamm,
Judge
writing for
the Circuit
self-defensе was
court’s
instruction
on
Court, explained that
effect of this in
the
portion
The first
prejudicially erroneous.2
(indeed
was to
to “in
struction
allow
corresponds
generally
of the instruction3
jury to
the
find the defendant
struct”)
Association,
Jury In-
Criminal
D.C.Bar
guilty
disproved,
if his alibi defense was
of
structions
the District
Columbia
regard
government’s
without
burden
Then fol-
1972)
No. 5.13.
Instruction
prove
all
the
of the crime.
elements
object-
portion of
lowed the
the instruction
that
to a
The court held
this amounted
di
ed to:
rected
which was viola-
appellant’s
right
tive
Sixth Amendment
prove to
be-
If the
does
Government
jury
Cooper
to a
See
United
the De-
yond a
doubt that
343, 345,
U.S.Apр.D.C.
94
218 F.2d
self-defense, then
not
in
fendant did
act
39, 41 (1954).
you must find the Defendant
instruc-
nothing
There is
in the standard
Hayward
The case before us and
portion
corresponds to
tions
apt
are as
as two cases are
to be
similar
the instruction.
In
in
come.
our case the effect
the
question
require
in
struction
the
was
Following
giving of the instruсtion
the
if it
that
found
specific objec-
appellant’s counsel made
disproved
the
claim of
Hayward,
it citing
tion to
United States v.
regardless of
the
whether
420
142
136
F.2d
jury found
that all of the elements
objected
judge recognized
The
that the
proven.
plea
Appellant’s
crime
been
thought
instruction
but
erroneous
guilty put
of not
all elements of the crime
point would do
changing
that
it at that
issue,
287
Roe
F.2d
good”.
“more
harm
(5th
368
Cir.), cert.
U.S.
g.,
e.
301-302,
(1961),
L.Ed.2d
Hayward, supra at
In
whether he inflicted the fatal wounds and
bound,
at 143-144
are
(a case
which we
if
self-defense.
so whether
done
Ryan, D.C.App.,
A.2d 310
M. A. P. v.
supported
the stand and
took
first
that
(1971))
jury was
instructed
testimony.
both
his own
For
defenses with
prove beyond
failed to
indicate,
by good
faith
judge to
albeit
doubt
defendant was
act
did not
doubt
Defendant
the instruc-
was made before
lias that
given
The
self-defense.
Government
indicated
since the
liad
was
tion
you find that
the Government
burden.
the “standard”
he would use
prove
a reasonable
lias fаiled to
self-defense.
did
act
self-
doubt that
Defendant
defense,
proven,
must
find the Defendant
self-defense is
If evidence
.
.
a reasonable
Government
reject the self-defense
required solely
that if the
that a conviction was
basis,
claim,
have, solely on that
the basis
the claim self-defense
could
considеring
appellant,
disproved,
convicted
without
is error.
the ele-
light of
weighing the evidence
as it
government argues,
did in
fact,
ments
weaker
crime.
instruction,
Hayward,
if it was
er-
claim, the
likeli-
greater
roneous,
error
constituted harmless
jury might
hood
convict without
basis that the other instructions were cor-
of all of the elеments of the
consideration
rect and that
self-de-
crime.
fense was weak.
Appellee refers us to United States v.
F.2d
It
contends
943 (1973), characterizing
its
general
correctly
which in
terms
set forth
“that in
as a
instructions
*4
the
government’s
law as to the
burden of
whole, an
instruction to the ef-
erroneous
proof,
presumed
should be
to have been
jury
beyond
fect that
‘must’
a
the
rea-
obeyed
jurors
by the
in their “faithful ad
defense,
sonable doubt as to a
of
matter
respective
herence
their
to
oaths”. This
. was harmless.”
argument assumes too
Time
much.
again
spoken
this and other courts have
Beyond
fact
words
the
that
the
“must
presumption
juries
the
faithfully obey
that
find” were used in both
the
the
given
instructions
to them
the
way
instruction in Martin is in no
similar
judge.
application
presumption
An
of this
us,4
to the instruction
nor was its
before
to the instant situation
to
leads
the dilem
potential
jury
harmful
the
effect on
as
ma
presume
of which instruction do we
the
great.
thought
in
The court Martin
it to
jury obeyed.
they obey
specific
Did
the
significant,
respect
with
its
to
determi-
they
instruction that
convict
“must”
if the
nation, that
the
error
instructional
before
government disproved appellant’s claim of
it was
prejudicial,
not
the evidence
self-defense;
they,
spite
or did
in
of that
strongly
ap-
adduced at trial
indicated that
specific instruction,
obey
gen
somehow
the
pellant was not intoxicated.
eral
government
that the
instructions
bears
proof
the
burden
a
said, however,
As we
the
have
error
in
doubt on all elements of
the offense?
our
prejudicial by
is
made less
case
not
the
are,
Faced with such a dilemma we
like the
alleged
appellant’s
weakness of
self-defense
court in Hayward, unable to find the error
claim since the error in effect
a
directs
harmless.
respect
all
elements
crime,
and it is
this
creates
we
Likewise are
unable
error
prejudice
appellant.
the
harmless
on
appel-
based
weakness of
the
government
summarize,
lant’s self-defense claim. The
To
the in-
find:
misconceives
nature
question incorrectly
of the instruction-
struction in
allowed
al
error when it
solely
states that
“did
based
not
strong
rejection
self-defense;
have a
on a
of his claim of
minimizing,
eliminating,
if
gov-
likeli-
general
other
instructions
any
Thе*problem
hood
prejudice.”
proof
ernment’s burden
of the elements
might
error;
is not
dissipate
have
did not
crime
erroneously reject ap-
appellant’s
caused the
and that
weakness
self-
pellant’s
claim;
problem
claim, if
prej-
defense
to the
irrelevant
"Xow,
know,
gentlemen
capable
ladies
mental
forming
state
was not
jury,
drinking
specific
question.”
not intoxication.
in
mere
intent
(Emphasis
original.)
doubt that
You must find
States v.
[United
place
ques-
supra
362-363,
at
at
the time and
F.2d at 946-
perform
tion if
was in
947.]
the act
such
that,
hoped
pretrial repu-
spite
of his
udice caused
the instructional
statement, Kelly
diation of his
cеrtainly
overriding.
is not
are thus
written
We
say,
testify in
unable to
are to af- would
accordance with
state-
we must we
proceed-
police
ment
resulting
firm a conviction
and therefore
committed,
“surprised” when
ing wherein
he did not.
error
been
possibility
there is no “reasonable
that the
Whatever
the merits of
con
thе conviction”.
contributed to
[error]
tention
under
circumstances
Florida,
427, 432, 92
Schneble v.
405 U.S.
trial,
insubstantial,
they
of that
are not
1056, 1060,
340 (1972).
31 L.Ed.2d
surprise
it is clear that
assertion of
unsupportable
a retrial
Accordingly,
we reverse this conviction
must fail as
and remand the case for a
law or
Belton v. United
new
fact. See
81, 83,
some of
Since
contentions
;
(1958)
Coleman v. United
by appellant may
error advanced
at a
arise
247 n.
retrial we deem it advisable to
comment
2 (1966),
F.2d 343 n.
cert.
them here.
(1967);
87 S.Ct.
peach
witness,
its
Kelly,
own
Surely
pos
O. C.
claim-
if the
were
ing
testimony
that his
surprising
repu
was nоt
itive that one
its witnesses-would
*5
to it nor
trial,
was it adverse to its case.
prior
diate a
statement at
it could not
so,
“surprised”
be
and claim
when
1973,
provides
per-
D.C.Code
14—102
§
1973,
14-102.
the benefit of D.C.Code
part:
tinent
States, supra. To
See Coleman v. United
When the
is
court
satisfied that
render mean
hold otherwise would
party producing a witness
been taken
has
statutory requirement
sur
ingless the
by surprise by
testimony
of the wit-
prise
interpret
allowing
the statute as
ness, may
party
it
prove,
allow the
impeachment
prior inconsistent
state
purpose only
affecting
exist,
credi- ments whenever such statements
re
bility
witness,
of the
that the witness has
also
gardless
surprise.5
It would
cer
party
attorney
made to the
or to his
tainly
requirement that “ac
contravene the
substantially
statements
variant from his
surprise
tual
must be found.” Belton v.
testimony
sworn
material
about
facts
supra.
United
cause.
appellant’s at-
We see no need to discuss
Appellant
claims that the
could
timing
tacks on the
of the
substance
by surprise by
not have “been taken
regarding
court’s instructions
the limited
testimony”
Kelly
since
learned from admissibility
impeachment
material
testimony
pretrial
his
at the
hearing
since,
stated, supra,
govern-
as we have
repudiated
po
he
the earlier statement
may
impeach Kelly
ment
at a new trial
signed.
govern
lice which he had
surprised by
on the
that it
his tes-
basis
ment,
relying on
Wheeler
timony.
(1953),
denied,
point out that in in
cert.
We would also
347 U.S.
position
structing
on a lessor included of-
(1954),
L.Ed. 1140
takes the
transcript
reading
truth when
us.
for their
substantive
Our
disturbs
statements
argued:
We
in his clos-
lie
note that
counsel
Kelly’s
says
ing argument
cut T. Wil-
also
that he
referred to
Mr. Baker
Simon;
way
Kelly
prior
he told
cut
in a
lie
O. C.
inconsistent
statements
pocketknife.
wholly incompatible
use
T.
with his own
was
with the limited
Willie Simon
admitted;
use was his
He said to him all he had to
which those
were
statements
pocketknife.
e.,
improperly
quite
to those
lie
/.
referred
fense, in
manslaughter,
this cаse
you
find after considera-
court should
it in-
careful as when
tion of the evidence that the Government
structs
principal charge
to state that
proved
charge
each element of each
the elements of the offense must each be
doubt, you
are
proved beyond a reasonable dоubt.
obliged
Defendant
find on the other hand that
We do not rule on
any ele-
Government has failed to
respect
to the court admit
ments of
offense
reason-
ting into evidence the statement he made
doubt,
equally obliged
able
are
police
after
arrest.
find him not
suppress
did not move to
the statement and
no
was made at
trial
to its
obligation
a reassertion of the sober
Such
admissibility.6
serv
purpose
would be
juror
permissible.2 E.g.,
of each
Unit
ed in
determining whether
constituted
Cir.1962),
Minker,
ed
In carefully delivered instruc not aсt doubt that the Defendant transcript. tions pages fill 21 self-defense, Unchal the Defend- find lenged following de does guilty. If the ant not Government viation from the standardized instruction doubt you beyond a reasonable on reasonable doubt.1 in self-de- did not act that the Defendant States, D.C.App., point, second 6. A. Hill v. United with reference 3.At (1971). charge, degree instruct- 2d trial court murder all elements if the found ed that doubt, Jury proven Dis- for the 1. Hue Criminal Instructions had been 1972). guilty. Columbia, “may The court find” the defendant trict of No. 2.09 jury found if the instructed further opposed may” missing, Superior [as element the* oath administered Under solemnly jurors cases, the defendant “must”] each Cоurt criminal objection deviation the latter was made to she will “a true or swears Of. according Criminal instruction. from the standard the law and the evidence”. render Jury D.C.App., of Colum- for the District Instructions Arshack Cf. supra, bia, (1974). No. 2.08. A.2d 845
fense, the Defendant must find for the Petition In Matter of the E. D. OF S. ADOPTION “jury instruc- recognized that It is well No. 7456. whole, rath- arе to be considered tions passages.” United er isolated Appeals. District of Columbia Court States 18, 1974. Submitted June F.2d Aug. Decided above, I would not cited the authorities challenged in- error in the find reversible for one evi- self-defense but
struction on Although advance
dentiary fact: also de- defendant
claim of the decedent. any injury on inflicting
nied
Hence, jury-“must the directive rejected if it
find” inevitably ran afoul
claim of self-defense Hay- United States
ward,
(1969), since the became irrespective of whether
proven beyond a doubt consequence injuries
victim in- died as a
flicted the defendant. readily
The defect could have been
cured, timely for defense counsel made to the use of the word “must”
the instruction and the trial effec- However,
tively acknowledgеd his error.4 trial think it court “But I concluded: go do over good
will more harm than thing.”
the whole Defense counsel judgment, such a but he
have made tactical *7 appellate not. courts must While
guard against an giving weight undue comprehensive portion
out-of-context the defect here
set of
leaves me rea- unable conclude
sonable was not de- doubt that defendant Chapman
prived of trial.5 v. Cali- a fair
fornia, 18, 87 17 L.Ed. 705 (1967).
2d liglit our on the issue of Although limited to the instruction, I reach “may”, would rather sentence use of “must” questions arise equally the other which be almost it was used would possible objectionable “may” used, retrial. since had been any injury causing denied decedent.