STEWART v. UNITED STATES.
No. 143.
Supreme Court of the United States
April 24, 1961
Argued February 21, 1961.
Carl W. Belcher argued the cause for the United States. On the brief were Solicitor General Rankin, Assistant Attorney General Wilkey, Wayne G. Barnett, Beatrice Rosenberg and Jerome M. Feit.
The
Petitioner has been tried three times in the District Court for the District of Columbia upon an indictment charging that he had committed first-degree murder under a felony-murder statute.3 In all three trials, petitioner‘s
The defense moved immediately for a mistrial on the ground that it was highly prejudicial for the prosecutor to inform the jury of the defendant’s failure to take the stand in his previous trials. The prosecutor defended his actions on the ground that this “is a fact that the Jury is entitled to know.” The trial judge agreed with the prosecutor, denied the motion for a mistrial, and the trial proceeded, culminating in the third verdict of guilty and death sentence. On appeal, the case was heard by
In this Court, the Government concedes that the question put to the defendant about his prior failures to testify cannot be justified under Raffel, Grunewald, or any other of this Court‘s prior decisions. This concession, which we accept as proper, rests upon the Government‘s recognition of the fact that in no case has this Court intimated that there is such a basic inconsistency between silence at one trial and taking the stand at a subsequent trial that the fact of prior silence can be used to impeach any testimony which a defendant elects to give at a later trial. The Raffel case, relied upon by the majority below, involved a situation in which Raffel had sat silent at his first trial in the face of testimony by a government agent
Despite this concession, however, the Government persists in the contention that petitioner‘s conviction should be upheld, arguing that the error committed was harmless and could not have affected the jury‘s verdict. This argument is rested upon three grounds: first, that the jury may not even have heard the improper question; secondly, that even if the jury did hear the question, it may not have inferred that petitioner in fact did not testify at his previous trial; and, finally, that even if the jury did infer that petitioner did not testify previously, no inference adverse to petitioner would have been drawn from this fact. The first two of these grounds can be quickly disposed of. We can think of no justification for ignoring the part of a record showing error on a mere conjecture that the jury might not have heard the testimony that part of the record represents. Nor do we believe it reasonable to argue that the jury trying this case would not have inferred that this defendant had failed to testify in his prior trials when the prosecutor asked, “This is the first time you have gone on the stand, isn‘t it, Willie?” Indeed, the recognition that such an inference will in all likelihood be drawn from leading questions of this kind lies at the root of the long-established rule that such questions may not properly be put unless the inference, if drawn, would be factually true.15 Thus, the Government‘s argument that
In connection with the defense of insanity, petitioner had introduced evidence of both mental disease and mental defect, as those terms are applied in the relevant law of the District of Columbia.16 On the mental disease issue, the testimony was that petitioner was suffering from manic depressive psychosis, a disease which the record shows tends to fluctuate considerably in its manifestations from time to time. On the mental defect issue, the defense introduced evidence that petitioner had an intelligence level in the moronic class. The case went to the jury on both of these points, the jury being directed to acquit if it found the homicide to have been the product either of mental disease or mental defect.17 Petitioner‘s “testimony” thus raised at least two different issues in the minds of the jury: first, whether petitioner was simply
We think it apparent that the jury’s awareness of petitioner’s failure to testify at his first two trials could have affected its deliberations on either or both of these issues. Thus, the jury might well have thought it likely that petitioner elected to feign this “testimony” out of desperation brought on by his failure to gain acquittal without it in the two previous trials. Similarly, even if the jury believed petitioner’s “testimony” was genuine, .it might have thought that petitioner’s condition was caused by a mental disease and concluded that it is unlikely that a disease that had manifested itself only one out of three times for exhibition at trial was active at the occasion of the homicide. Or, on the same assumption, it might have thought that petitioner’s failure to exhibit himself at the previous trials indicated that the condition manifested at this trial was the result of a worsening in his mental condition since those trials and, consequently, also since the commission of the acts charged in the indictment. There may be other ways in which the jury might have used the information improperly given it by the prosecution—we have mentioned more than enough already, however, to satisfy ourselves that the Government’s contention that the error was harmless must be rejected.
The Government’s final contention is that even if the error was prejudicial the conviction should be allowed
We thus conclude that this conviction and sentence against petitioner cannot stand. In doing so, we agree with the point made by the Government in its brief that it is regrettable when the concurrent findings of 36 jurors are not sufficient finally to terminate a case. But under our system, a man is entitled to the findings of 12 jurors on evidence fairly and properly presented to them. Petitioner may not be deprived of his life until that right is accorded him. That right was denied here by the prosecutor‘s improper questions.
Reversed.
The result which the Court draws from its account of the trial seems not unreasonable. But by force of what the Court does not relate, there is such disparity between its account and the almost nine hundred pages of the trial transcript that, in fairness, the Court‘s opinion hardly conveys what took place before the jury and what must, therefore, rationally be evaluated in attributing any influence on the jury‘s verdict to the questions which the Government now concedes were improperly asked. “In reviewing criminal cases, it is particularly important for appellate courts to re-live the whole trial imaginatively and not to extract from episodes in isolation abstract questions of evidence and procedure. To turn a criminal appeal into a quest for error no more promotes the ends of justice than to acquiesce in low standards of criminal prosecution.” Johnson v. United States, 318 U. S. 189, 202 (concurring opinion).
What emerges from the transcript, at the outset, is that Willie Lee Stewart‘s killing of Harry Honikman was practically never in issue. The testimony of two eyewitnesses who positively identified Stewart as the killer1 was not seriously challenged. A third witness had examined in Stewart‘s hands, shortly before the killing, the gun which unimpugned ballistic evidence established fired the lethal shots. The testimony of a fingerprint expert, also unimpugned, linked Stewart to the killing. Nowhere in their opening or closing statements did experienced defense counsel ask the jury to doubt that
Insanity was not merely, as the Court says, Stewart‘s chief defense; it was his defense. His lawyer put it aptly: “[The prosecutor] knows as well as I, as anybody in this courtroom, the only defense we have is insanity.”2 Thus, there is not involved in this case the danger that the jury, being told as laymen of the defendant‘s previous failure to testify in his own behalf, reasoned that if Stewart did not do the acts with which he was charged he would have said so. Here, those acts were not contested. If prejudice is not to be blindly assumed, but to be discovered in the record, it must be discovered by some more subtle train of associations.
Stewart‘s trial took the major part of six court days: twelve calendar days. The Government‘s opening case, presenting the testimony of the eyewitnesses, fingerprint and ballistic experts, arresting and investigating officers, etc.—ten witnesses in all3—consumed a day and a half. Thereafter, beginning on the second court day and running into the third, the defense put in the testimony of a series of witnesses—Stewart‘s cousin, landlady, friend, sister, employer, wife, neighbor, sister-in-law—all of whom recounted episodes of Stewart‘s behavior tending to show his unsoundness of mind.4 These episodes spanned the period of his life from early childhood until the time of the killing, and they painted what, to say the least, is a bizarre portrait.
On the third trial day, the defendant took the stand and was examined and cross-examined briefly. His testimony occupies fifteen pages of the eight-hundred-and-eighty-
“Q. What is your wife‘s name, Willie?
“A. You should ask her that. As far as I am concerned, I don‘t have no wife. I don‘t consider I have any; therefore, I can‘t say what her name is.
“Q. Have you ever been married?
“A. I wouldn‘t say married.
“Q. What do you mean you wouldn‘t say married?
“A. Well, as far as I concerned, nobody is married, as far as my way of understanding.
“Q. Do you have any children?
“A. I don‘t consider—I have none. She say I have some. I don‘t have none. If she say I have some, I guess I have to leave it to her. As far as my concern, I don‘t have none and I don‘t want none.
“Q. Do you know where you are now?
“A. Looking at you, as far as I know.
“Q. What is my name?
“A. I don‘t know.
“Q. Who is your lawyer?
“A. Well, I mean, I am my own lawyer, as far as my concern.”
On his direct examination, Stewart testified that he did not know what kind of a building he was in, that he had never shot nobody but that the white folks told him he was supposed to kill; that he considered himself master, as far as the killing situation; that he was the monkey, the monkey with the tail; that he still remained to see that monkey with the tail; that he had been told to kill—his mind tells him to kill—and he was always going to kill until he conquered; that the good man upstairs say so; that he had talked to God and God told him to conquer everybody, that he was the master; he
“Q. You can see me, can’t you, Willie?
“A. Sure. You can see me, too, can’t you? We see one another. I am going to be the master and you ain’t going to stop me and nobody else.
“Q. Tell me, Willie, do you know a Dr. Williams?
“A. Dr. Williams?
“Q. Yes, E. Y. Williams.
“A. Why you keep asking me? If I told you once, I told you a hundred time, I am my own doctor. Why you keep asking me the same question over and over again. I told you I am my own doctor.
“Q. Do you know a Deputy Marshal by the name of Ballinger?
“A. I am my own marshal. I am everything. That takes care of the whole question. I am everything. Everything you ask me, I am talking to me, I am it.
“Q. Willie, you were tried on two other occasions.
“A. Well, I don’t care how many occasions, how many case—you say case. I was a case man once in a time.
“Q. This is the first time you have gone on the stand, isn’t it, Willie?
“A. What?
“Q. This is the first time you have gone on the stand, isn’t it, Willie?
“A. I am always the stand; I am everything, I done told you.
“Mr. Smithson [the prosecutor]: That is all.
“The Witness: You and nobody else going ever stop me.
“The Court: Mr. Carey [defense counsel], anything further?
“Mr. Carey: That is all.”
Defense counsel immediately moved for a mistrial, which was denied. The defense then qualified Dr. E. Y. Williams, a psychiatrist, as an expert witness. Responsive to hypothetical questions predicated upon Stewart‘s army record, the various instances of odd behavior testified to by the previous lay witnesses, and the circumstances of Honikman‘s killing, Dr. Williams gave his professional opinion that Stewart was, at the time of the killing, suffering from both a mental defect and a mental disease. He explained in detail the psychiatric significance of Stewart‘s intelligence quotient of sixty-five, a rating which, he told the jury, would characterize Stewart as a moron. He further typified Stewart‘s mental disease as manic-depressive psychosis and, by the use of a blackboard, diagrammed and described the cyclic character of that disease. He testified that his own examination of the defendant in 1953 had yielded insufficient personal history to base a diagnosis, but that he had examined Stewart on several occasions since that time and found nothing which would change his opinion that Stewart was a manic-depressive psychotic. Dr. Williams was cross-examined at length on the afternoon of the third and the morning of the fourth days of the trial.
The remaining three trial days were taken up, in large part, by the testimony of seven government witnesses put forward to rebut Stewart‘s defense of insanity. Two psychiatric experts testified that they had examined
It is unnecessary to describe in greater detail here the testimony of these seven government witnesses. All were cross-examined, two of the experts at considerable length. On the sixth trial day, counsel for the Government and for the defense addressed the jury. Neither in these exhaustive closing statements nor in the court‘s extended charge was any reference made to the two questions, asked several days before and, in effect, unanswered, which are now assigned as prejudicial error. The jury retired, deliberated, and found the defendant guilty.
First, Stewart never intelligibly answered the questions. The jury was not told and did not know as a fact that he had not previously taken the stand. The Court now finds that the jury may nevertheless have inferred the information from the leading form of the prosecutor‘s questions. But this conclusion should not be reached merely on the basis of the broad generalization that “such an inference will in all likelihood be drawn from leading questions of this kind.” Such an abstraction does not get us to the heart of the question before us. That question, in one aspect, is whether it is likely that this jury in the circumstances of this case drew the inference from this leading question. It is not only not likely, but overwhelmingly unlikely.
The question was not pressed or persisted in by the prosecutor so as to concentrate the jury‘s attention on it as an assertion of fact. It was once repeated—when Stewart asked “What?“—and then dropped. It was asked in a setting in which it is not to be assumed, because most improbable, that the jury took in and paid heed to the content of the prosecutor‘s questions as such, particularly the one now so inflated in importance. On the
Even had the jurors not been absorbed by the eye-catching spectacle of Stewart on the stand, and even had the unanswered questions been answered, the inference attributed to the jury by the Court would hardly have been a probable one. For the prejudice which the Court conceives does not arise from the simple knowledge that Stewart had not previously testified. It arises only upon the supposition that the jury indulged conjectures concerning the reasons for his not testifying, and upon the
Finally, these two concededly impermissible questions—more accurately, a single question once repeated at the witness’ request—must be viewed in the perspective of the proceedings as a whole. Asked and left unanswered on the third day of a six-day trial at which eighteen witnesses testified and the testimony of eight more was read to the jury, the questions were never again adverted to. They had been preceded by a series of what the jury cannot but have found startling accounts of Stewart‘s behavior, were contemporaneous with a glaring display of the symptoms of madness, and were followed by a two-day battle of expert witnesses—one accoutered with blackboard and chalk—all addressed to the question of Stewart‘s sanity. It weaves solidities out of gossamer assumptions to attribute to fleeting and argumentative implications of fact in a leading question an impact so ponderous as to discredit and reverse a jury‘s verdict in the context of a record that impressively carries the contrary meaning. The jury was not left to pick at such threads in order to weave the cords of its verdict. On both sides—by both the prosecution and the defense—strong, heavy cables were furnished it. To suppose that, even if noticed when asked and made the occasion of implausible deductions, these questions amounted to more than a whisper drowned in the compulsion of ear-resounding testimony, seems to me a striking example of pursuing a quest for error.
“. . . The . . . disposition on the part of the courts to think that every provision of every rule of law in favor of the defendant is one to be strictly enforced, and even widened in its effect in the interest of the liberty of the citizen, has led courts of appeal to a degree of refinement in upholding technicalities in favor of defendants, and in reversing convictions that render one who has had practical knowledge of the trial of criminal cases most impatient.
“. . . When a court of highest authority in this country thus interposes a bare technicality between a defendant and his just conviction, it is not too much to charge some of the laxity in our administration of the criminal law to a proneness on the part of courts of last resort to find error and to reverse judgments of conviction.”5
I am convinced that today‘s decision falls within these weighty strictures. To explain the jury‘s rejection of Stewart‘s sole defense of insanity, with its consequent finding of guilt, on the ground, as a matter of assumption, that the jury was influenced by the two questions on which the verdict is reversed here, is to show less respect for the jury system than do the opponents of the system.6 One does not have to accept all the encomia which opinions of this Court have showered on the jury‘s functions and values, not to attribute fecklessness to the twelve men and women chosen to sit in this murder case. To make
Mr. Justice Clark, with whom Mr. Justice Whittaker joins, dissenting.
It may be that Willie Lee Stewart “had an intelligence level in the moronic class,” but he can laugh up his sleeve today for he has again made a laughingstock of the law. This makes the third jury verdict of guilt—each with a mandatory death penalty—that has been set aside since 1953. It was in that year that Willie walked into Harry Honikman’s little grocery store here in Washington, bought a bag of potato chips and a soft drink, consumed them in the store, ordered another bottle of soda, and then pulled out a pistol and killed Honikman right before the eyes of his wife and young daughter. The verdict is now set aside because of some hypotheticals as to what the jury might have inferred from a single question asked Willie as to whether he had testified at his other trials. In my view, none of these conjectures is sufficiently persuasive to be said to cast doubt on the validity of the jury’s determination. Let us first review the setting of the fatal question in the trial.
The jury heard evidence for six days and from some 26 witnesses. The printed record here, which is only partial, consists of 400 pages. Willie Stewart’s “gibberish” comprises nine pages, representing perhaps some 20 minutes of testimony. It came during the third day of the trial. Mr. Carey, Willie’s counsel, had placed him on the stand. He had asked on direct examination, “Have you ever taken an oath?” Willie replied, “Not that I knows of.” Willie was also asked by his counsel, “Did you ever stand trial before this trial for the murder of Harry Honikman?” He answered, “Well, you talk. You
A government witness then testified that on the very night of the murder Willie was playing cards, that he exhibited the pistol used in the slaying to one of the players, that he left the card game before the hour of the murder, and that he returned to the card game after the hour of the murder and continued playing cards until about 2 a. m. This witness testified, “he [Willie] seemed normal to me.” This was followed by testimony of an aide at St. Elizabeths Hospital and a guard at the District jail as to his conduct all during the period after his arrest up until a few weeks before his third trial. All said that he was perfectly normal; that he talked freely and understood the conversation; that he used a Bible and a dictionary, played bid whist and checkers and was a “model” patient or prisoner. His jail file revealed that
In the light of this testimony, I find the hypotheses of the Court, with due deference, entirely unrealistic, if not
In the first place, it seems to me a violent assumption to say that the jury believed, solely from the Government‘s question on cross-examination, that Willie had not testified at the prior trials, especially since he had already testified in response to a query from his own counsel on direct examination that he had never been under oath. Moreover, in opening up the issue of prior trials, the defense counsel was obviously trying to leave the impression with the jury that they had not concluded in guilty verdicts. When he received answers such as “you talk“—“You just go ahead and explain“—“Don‘t ask me,” he repeated the question. And the government counsel got like answers to his questions: “I don‘t care how many occasions,” etc. And the answer to the question found prejudicial was first a “What?” and upon its repetition, “I am always the stand.” Using the majority‘s speculative approach, it is the more likely that the jury thought from those questions that the previous trials resulted in hung
I note that the Court does adopt one point made by the Government. It says “that it is regrettable when the concurrent findings of 36 jurors are not sufficient finally to terminate a case.” I, too, agree with that, but in view of the Court‘s approach I would add that its regret is tempered by its willingness to indulge in such hypothesizing as to effectively remove from our law the concept of harmless error in capital cases.