*1 94S of America UNITED STATES Appellant.
George MARTIN, A.
No. 71-1457. Appeals,
United States Court District Columbia Circuit.
Argued June
Decided Jan. Washington, Taylor, D. M. Durward Jr., Lawson, C., V. Belford with whom C.,
Washington, was on brief D. Court), (both appointed by pellant. Queen, Atty., Asst. U. S. Thomas H. Jr., Titus, H. U. S.
with whom Harold Terry L. Atty., A. and Warren John Miller, Attys., were U. Asst. S. appellee. brief Judge, BAZELON, Chief Before Judges. TAMM, Circuit McGOWAN and Judge: TAMM, Circuit Appellant George A. Martin was tried convicted of assault *2 George Thompson kill with intent R. to other side of the automobile where he danger- apparently trying and with a armed assault was to other while force the weapon open. Thompson on B. He was ous Robert Clark. window yelled both and Clark “get away ten to terms of sentenced concurrent him to from years point appellant and life on the former count to car.” At this ing was stand- Appel- years to on the latter. the three near rear of Mr. on one Clark’s car alleges errors, side; Thompson of numerous none lant street Mr. had After care- raised at trial. crossed in front Clark’s car to the which were argu- of the record and ful consideration street side and about six feet from was parties, appellant; ments advanced and still on the Clark was proceeding which would merit no substantial error sidewalk towards the rear reversal evidence which overwhelm- his car. and Accordingly, ingly supports the verdict. Thompson testified next that Clark we affirm. yelled appellant to the effect that it Thereupon appellant,
was Clark’s car.
standing
who was
hands at his
his
position,
lunged
side in a relaxed
at
immediately
sequence
The
of events
Thompson and struck him on
the side
gleaned
surrounding
the assault must
By
pro-
the neck.
this time Clark had
primarily
testimony
from the
appellant,
ceeded
street behind
Thomp-
parties involved,
three
Messrs.
appellant
and
turned on
hit
him. Clark
son,
being
Martin,
Clark and
there
no
appellant, causing him to
head
strike his
eyewitnesses
other
crime.
on the rear of the car
and fall
testimony
Thompson
and
Clark
pavement.
fell,
As he
a knife scooted
corroborating.
and
consistent
On
Thompson
from
hand
his
and
retrieved
evening April
shortly
Thompson
it.
It was then that
discov-
m.,
p.
Clark,
B.
11:00
Robert
dressed
slit,
ered that his own neck had been
accompanied by
a tuxedo and
a female
exposed
wound of about six inches which
companion, parked his car at the corner
jugular
required thirty-two
vein and
N.W.,
Streets,
of 18th and P
from
stitches to close.
proceeded
whence
on
than
foot less
upon observing
Clark testified that
nightclub
Dupont
one block to a
near
breaking
appellant
scuffle
out between
parked
car,
Circle. When he
Thompson
and
he ran
around
rear
suspicion
had been
man
aroused
the car to the street side. He observed
“leaning
light
looking
on the traffic
and
going
Thompson
appel-
to his knees and
looking
and
date and
[he]
[his]
lant with one arm raised as if to strike
car
[his]
acted little
[who]
allegedly
tapped
another blow. He
strangely.” Apprehensive
because
pellant
shouting
on
shoulder
“What
car,
left his
overcoat in the
Mr.
you doing,”
point appellant
are
at which
Clark decided
would be
wise
swung at
turned and
Clark’s face with a
return and move the vehicle to another
sharp object.
knife or other
Clark
companion
location. He escorted his
appellant
ducked and then struck
several
doorway
nightclub
where he
causing
times
him
fall
hit
and
acquaintance, George
encountered an
head
thereby
the’
rear of the car
Thompson,
planned
who also
to attend
taillight.
breaking the
nightclub
Thomp-
dance. He asked
accompany
son to
him back to
Metropoli-
the car.
The Government introduced
they ap-
The two men embarked,
Lewis,
tan Police Officer Landon H.
who
proached the intersection P
shortly
18th and
had arrived at the
after
scene
Streets, Thompson noticed that
there
the incident and found
in a man,
herein, appar-
state,
semi-conscious
with Mr. Clark as-
ently
open
trying sisting
force
window
administering
first aid. Ac-
Thompson
Clark’s car.
cording
As
testimony,
Clark
shortly
to his
after
approached, the man
over
question appellant
crossed
incident
object. The
George Washington hospital
with the
of the head
taken
front
following colloquy
questioning
then occurred:
several
After
treatment.
seeing that
on the scene and
individuals
Attorney]
Q.
[Prosecuting
Thompson
properly ministered
Mr.
thing
happens is Mr. Clark
first
proceeded to
to,
Officer Lewis
object
hits
with an
comes
Washington
By
*3
George
Hospital.
1:00
up
hospital,
you
is that
in the
wake
appellant
and had
m.
had been treated
a.
correct?
regained full
and Officer
consciousness
correct.
That’s
A.
[Martin]
he was coherent and
testified that
Lewis
you
Q.
Mr. Clark
And
struck
never
cognizant
appeared
of his sur-
to be
Thompson,
correct?
is that
or Mr.
roundings. Appellant
was then
correct.
A. That is
injury
Thompson,
to Mr.
formed
explain
Q.
Then, how do
how
placed
advised of his
under arrest and
falling
Thompson
back
rights.
he was
point, according
Mr.
as
At that
Offi-
happened
Lewis,
“Why
to cut his throat?
appellant
I here
cer
said
am
why
I in
condition? I am
and
good
am
this
fall
A.
didn’t
down
believe—I
guy
with a knife. The
should
object.
hit me with this
first
time he
being
Upon
released from
dead.”
say
maybe three
He hit me I’d
two
police
hospital
transported to the
hitting
with
me
times. As he was
appellant
should
station
also said “I
fellow,
object
the other
Mr.
guy.”
have killed the
grabbed
trying to
Thompson, had
me
falling he
pull
as I
me down and
According
appellant,
who testified
with me.
fell down
behalf,
in his own
he had been at the
girlfriend
home
where he had tak-
he
Appellant
that as
further
testified
awaiting
en a “few drinks” while
her re-
fell, Thompson
cut his throat
must have
apartment
turn. He left the
and walked
car,
pre-
taillight
which
bus,
to the corner to await
he
where
already
sumably
This was
broken.
“might
leaning
have been
on Mr. Clark’s
testimony
contrary
only
to the
not
Clark, according
appellant,
car.” Mr.
Thompson,
was also refut-
but
Clark
up
then came
behind him and
him
asked
physician
Slavick,
by
Dr. Harris
ed
something. Appellant did not see him.
Thompson.
tes-
Dr. Slavick
who treated
allegedly
Clark then
hit him on the head
that,
opinion, wound as
in his
tified
pipe
something,” rendering
“with a
or
sharp
the one
clean and
appellant
appellant
unconscious. Later
knife,
by
razor
been caused
must have
claimed that the “few drinks” amounted
instrument, and could
or other similar
quart
Vodka,
to a
contrary
all
tail-
broken
caused
been
have
testimony
purported girlfriend
of his
tes-
Appellant
light.
introduced
who
any
stated
there
was never
li-
Hampton,
timony
Mrs.
of Mr.
quor
apartment
in her
and that when
briefly con-
he had
whom
friends with
shortly
appellant
she arrived home
after
di-
prior
On
just
to the incident.
versed
absolutely
signs
left there were
no
they testified that
rect examination
pellant
drinking.1 During cross-examination
although
drunk,
on cross-ex-
appellant substantially revised his testi-
appel-
they
conceded that
amination
both
mony.
maintaining
While still
that he
physical
manifested none
lant
object
did not see Mr.
or
Clark
intoxi-
signs commonly associated with
which
purportedly struck,
he
Thompson
Moreover,
he
and Clark
cation.2
testified,
concordant with
stated that Clark had hit him on
had both
appellant’s reputed
Dickerson,
girl
Specifically,
testified that
Miss
one or both
spoke,
appellant
friend,
appellant
when he
further testified that
had
could understand
bang
stagger,
perjure
the sides
asked her to
indeed,
he
herself
court—
way
act offensive
other
offered to bribe
the wall or
claim
her —
eyewitness
appeared
ing
lying
obnoxious,
to un-
that she was an
and that
or
said to him.
about the incident.
all that was
derstand
testimony
Lewis,
of Officer
that from would end here were it not for Rule
appellant
ap- 52(b)5
permits
their
reviewing
observations
did not
which
pear to
“[p]lain
be intoxicated.
court to take notice of
errors
affecting
rights.”6
defects
substantial
Having carefully considered
II
the record
whole,
opinion
as a
we are now of the
As
threshold matter
failed
has demonstrated
one
preserve any of
issues which he
proceed
error that merits comment. We
objection
timely
now raises
at trial.
to a discussion of whether
af-
that error
contrary
This is
to Fed.R.Crim.P.
rights.
fected substantial
provides
party
which
that a
should make
“known to the court the action
Ill
objection
desires the court to take or his
Appellant was convicted of one
action
the court and the
*4
”
count of assault with intent
kill
to
while
grounds
sig-
therefor
.
armed,
requiring specific
a crime
intent.
requirement
nificance
this
not
lies
See,
g.,
Bryant,
e.
United States v.
137
important
in the
“need for a
124,
(1969).
U.S.App.D.C.
L.Ed.2d 705 instructing present case, In the while er- constitutional federal general jury proof [B]e£ore on the harmless, the court held ror can be issuing prior sentence, the erroneous to declare belief that must be able the trial on numerous occa- beyond a reasonable was harmless jury’s sions directed the attention to the doubt. fact the entire burden was Moreover, paragraph Harrington California, Government.10 See immediately by in followed 23 L.Ed.2d S.Ct. paragraphs correct on two the issue of recently illumi- The Court has intoxication: in Milton v. Wain- nated standard wright, 371, 92 S.Ct. hand, you the other if On involving (1972), L.Ed.2d 1 a case prove the Government has failed to multiple con- into admission evidence beyond a at the reasonable doubt that by defendant, last of which fessions alleged time of the commission of the tainted, it concluded: where capable offense the o defendant was f however, record, Our review determining forming specific or of doubt us no reasonable leaves intent to commit the offense with petitioner’s charged offenses, which he is ver- the same trial would have reached specific and that the intent to do so— testimony hearing dict without [the you you then find that police posed petition- officer who prove Government has failed to in er’s cellmate order obtain con- capable this case was use of the additional fession]. [T]he forming specific intent then challenged proceeding evidence may you find the defendant challenge was, arguably open to guilty. beyond doubt, harmless. reasonable If find that has Government 377-378, 92 at 2178. 407 U.S. at particular case, in this that if there is Chapman progeny ex- therefore and its your mind, doubt doubt then the hort an examination of the evidence may be determined in favor of the de- reviewing view toward court with a fendant so far as the intent. determining the error meant whether already We have indicated the acquittal con- difference between presented nature of the alleged evidence Thus, considering viction. *7 issue of present intoxication. Three Govern case, error in the deter- we must appellant beyond ment witnesses testified that doubt, mine, wheth- reasonable appear did not to be intoxicated. When er the same result have been would appellant judge stand, took the his testimo reached had the omitted the erro- ny on the issue was inconsistent and neous sentence in his instructions contradictory. correctly explained the had he in One of three witness the burden by presented appellant es that in sentence. admitted following proving guilt passages the overcome Consider from the evidence your beyond instructions: satisfaction a reasonable required is to estab- doubt. system lish his innocence under our of jurisprudence. guil- imposes Now, The law never in order to the defendant upon ty a defendant in a the the Government must criminal case of offense the duty any prove beyond calling the burden or the wit- a reasonable doubt producing following the of- ness or evidence whatso- essential elements of in ever his defense fense. .... specific presumption Second, And this at- that he so with of innocence complainant. throughout progress him tent kill the tends of the it him it trial and remains with until is open appellant judge concerning had offered to court that of the trial the burden two, her; proof friends while the other constitutional bribe amounted to er- appellant, Chapman testified that dis- ror and standard ply. played physical manifesta- I be- none But because cannot conclude Finally, very yond jury tions of intoxication. a reasonable doubt that question, whereby in verdict nature of the acts would have reached the same nearly appellant lunge properly intoxication, I six instructed was able nearly feet to would reverse and deliver a fatal wound and remand new trial. adversary one then turn at- and
tempt second, supports overcome I posses- in full conclusion that Once the issue of is intoxication sion of his faculties.11 govern- raised, the burden rests on the con beyond
In view the instructions ment to show a reasonable doubt drinking whole and the substantial sidered as that defendant’s did not de- presented trial, are con stroy requisite evidence capacity to form the beyond vinced a reasonable doubt intent he in- crime.3 After prejudiced. Accord was not jury requirement structed the ingly specific we affirm. intent, noted that issue of intoxication been raised (dissenting): BAZELON, Judge “may Chief intoxication be introduced into evidence to determine agree state mind. majority with the ” explained: . He then reviewing applied standard in judge’s erroneous is the [Ijntoxieation intent, instruction pertains Chapman one set out in v. California.1 an essential element the offense proof beyond a is Since reasonable doubt charged. with which the defendant right essential already constitutional told, specif- As have been process,2 due instruction erroneous ic intent one of the essential ele- Judge carefully 11. Chief proof they Bazelon wrote with which resolved dissenting opinion Suggs Judge Finally, reasoned urged it. Bazelon States, supra, “apparently which serves as an substantial” of intoxi- defense presented by excellent device facts to illustrate cation was present in the con- Suggs, drawing particular case are even more attention to the vincing in alleged terms than of affirmance those fact thief off made Suggs. Judge First, pair Bazelon Here, course, stressed with a of false teeth. considering that the incorrect instruction was the last we are an assault one al- sentences, of a legedly series of it intoxicated individual on two other judge’s terminology imbedded the trial individuals which the former was able jury’s in the telling minds: damage to inflict swift and concerning succumbing. The incorrect statement un- explained possession thing was the last 1. 386 U.S. heard in connection with the (1967) (where affecting an error constitu- robbery charge, were told rights harmless, tional to be held it represented principle” a “further beyond must be found to be harmless the rule that is a intoxication defense. doubt). *8 reasonable at 1278. Neither is true in this indeed, Winship, opposite 2. exact In re the is true 90 S. case— paragraphs (1970) since the correct Ct. two followed L.Ed.2d 368 : Judge any Lest the erroneous sentence. there remain Bazelon doubt about argued persuasively also jury that the the should constitutional stature of the reason- accepted standard, explicitly the have inference incorrect- able-doubt hold ly may them, protects the related to that Due well have Process Clause unnecessary against except that concluded it was even the accused to conviction proof beyond specific upon may, a resolve the issue of intent and reasonable doubt of every necessary fact, fact to disregarded altogether. constitute the have it In charged. crime with which he is present case, hand, the on the other the jury had the reach of and issue intent See, g. 3. e. Womack v. United U.S.App.D.C. 40, the defense At intoxication. issue is the intent, unable to form in this the defendant is if defendant Even the merits. heavy by placing a intoxi- burden particular may have been case drinking ju- degree, you, that his defendant show as cated to some “intoxication,” the that amounted to such the evidence rors, from determine beyond proved court state’s burden a removed the has the Government beyond showing a that reasonable doubt the defendant that reasonable doubt is, capacity form knowing, the the that defendant had capable know- was doing ing the the intent.4 so far as he what specific concerned, to commit intent course, states, majority jury as the Of may you question, then the offense considered as a instructions be may have find the that Government passages. whole rather than in isolated beyond all proved doubt a reasonable majority re that harm believes offense. elements the the essential sulting the instruction from erroneous language purged by em other which jury only in- far, knew the Thus phasized the was on the intent, pertained to an essen- toxication government beyond prove a reason crime on which element of the tial capa able doubt that defendant was prosecution the ultimate burden had forming specific ble intent on to proof. then went The trial charged. in But I find that the court’s “intoxication”: discuss constitutes what were, whole, from structions as far a drinking in- is not [MJere clear on the matter intent.5 And beyond a find You must toxication. crystal jury if the as to even were clear doubt that defendant reasonable issue, who on this had the burden place if he the time and just have could concluded perform men- the act was in such drinking until not relevant to intent capable of tal state that had the drink shown that defendant ques- forming specific intent ing amounted “intoxication” —that tion. capacity.6 diminished his clearly erroneous The instruction is certainly Appellant had in- a colorable lay jury easily conclud- a could have toxication defense. He testified that a defense which ed intoxication is shortly scuffle had drunk de- when the is to be considered vodka; quart witness, a a who later beyond proves a reasonable fendant had her to claimed wanted drinking as his was so severe doubt that refused, lie but she nonetheless destroy capacity drunk; to form the testified that defendant was by defining words, two other witnesses testified “in- defense tent. other drunk; that he was and even victims being in as state of which toxication” intent elements assault Compare Suggs v. danger- kill and intent assault with F.2d 1272 weapon be taken as char- dissenting). ous also could Judge (Chief Bazelon acterizing positive intoxication de- following immediately The instruction (to proven by defendant) fense : majority charge, erroneous already has ad- [T]he court confusing quotes length, its you that counts 3 and vised coun- easily language re- have could conditional argued you argu- has in his final sel misconception: jury’s enforced ment, intoxication is not a defense you the Govern- find [I]f dangerous assault with because prove the defend- ment failed to has separated weapon general intent as capable forming ant in this case was specific intent. And or taken from out may specific intent then therefore, you not consider the de- need guilty. (emphasis *9 as intoxication so far counts fense of added) (Emphasis 6 are concerned. add- ed.) subsequent judge’s clarification on the difference his instructions strangely, if he in which testified that he acted as stances were secured are testimony in the described of Officer were drunk.7 Lewis: I cannot con- In circumstances these beyond hospital placed that the A. At the doubt I Mr. Mar- clude a reasonable tin [the of the trial under arrest and instruction defendant] erroneous rights. advised him of his error.
was harmless Q. regain Did he consciousness
II your presence? majority notes, the issues As the A. Yes. pre raises were now Q. cognizant appear And he did court-appointed by at his served surroundings? his torney. coun The record indicates A. Yes. object failed sel clearly judge’s instruc erroneous Q. you placed Now, when him under object to the tions, failed but also rights arrest and advised him of his in of certain introduction Government’s what, anything, did he state at that appel culpating made statements time? being police officer, after taken lant to a began through looking A. He improper custody. admission into pockets. trouser He asked where his damaging would sure of this confession why knife was. He wanted to know ly affecting an error substantial Why he was here. he was in this con- rights.8 persuaded that I am And dition. record does not sustain evidence on the Q. government heavy say anything Did he else ? appellant’s show a valid waiver Yes, said, “Why A. am I here against privilege self-incrimination.9 why am am I this condition. held in v. As this Court United States good guy with a knife. The should be government Frazier,10 the burden on the dead.” requires show a valid waiver it to On officer elabo- cross examination the prove Miranda that the accused received story: rated on this warnings making inculpatory Q. you capable Now, placed . . statement and that he “was . when warnings giv- understanding” the when Mr. Martin under arrest what did en. advise him that he under arrest for?
It is not clear from this record wheth-
warnings
given
A.
er the Miranda
were
be-
I advised him he was under ar-
dangerous
fore the
made. The in-
rest
with a
admissions were
assault
weapon
criminating
.
statements
the circum-
majority points
prose-
Supreme
7. The
out that
mind an
made
both
observation
many years ago:
cution and defense witnesses testified that
Court of Illinois
court owed
many
[T]he
[the
did not show
advantage
to see that no
defendant]
“physical
usual
manifestations
of intoxi-
came to the state
reason of
However, beyond
testimony
cation.”
[inadequacy]
of the counsel
text,
referred to in the
there was testi-
by the court for him.
selected
mony by
describing appel-
one witness
People
Blevins,
Ill.
speech
sounding
lant’s
like
“he had
(1911).
N.E.
any case,
load of cotton in his mouth.”
In
Arizona,
9. Miranda v.
purposes,
ques-
for our
intoxication
L.Ed.2d 694
physical agility.
tion of mental not
-,
F.2d 891
10. 155
applying
52(b)
rule
to cases which
See
p.
(en banc).
(like
us)
the one before
involve the failure
U.S.App.
Frazier
appointed attorney
object
of a court
187, n.31,
D.C.
court,
might keep
error of the
n.31
*10
a conclusion
to base
on which
formation
that
made
Q.
mention
there
Was
were ad
appellant’s statements
the
just
that
what
cut and
been
had
someone
charged missible.
why he was
happened and
had
with assault?
testify,
appellant
chose
the
Since
ruling in
Supreme Court’s
under
Yes sir.
A.
inculpatory
York,13 his
v. New
Harris
Q.
?
this
He was advised
might
introduced
have been
statements
though
A.
sir.
Yes
purposes
impeachment
even
for
How
not met.
criteria were
Miranda
ambiguous
Clearly
toas
the evidence is
appear to be the basis
ever,
does not
this
given.
warnings
And
when
were
government
introduced
on which the
directly
appellant’s
statement went
government
First,
those statements.
important question of his intent.
the all
met the
it had
contended
Moreover,
strong
are
indications
there
government
Miranda;14 the
burden
appellant
capacity
to un
lacked
argue
were
the statements
warnings
even if
were
derstand the
appellant.
impeach the
introduced
timely.
testimony
There was
Second,
introduced
were
the statements
great
liquor ear
had consumed a
deal of
appellant
testified.
evening.
lier in the
He was unconscious
introduced
were
If
statements
right
perhaps
for some time before and
govern-
purposes,
impeachment
for
exchange
up until his
with Officer
under
its
to meet
ment failed
Lewis.11 Officer Lewis testified that
fall
the admissions could
If
Miranda.
appellant’s
there were lacerations on the
exception, the circum-
Harris
within
head,.-which
bandaged,
heavily
was
limiting instruc-
that a
dictate
stances
sug
face was swollen. This
can-
required. Defense counsel
tion was
gests
appellant may
have suffered a
limiting in-
to have waived
not be held
injury.
very
Serious head
It is
unclear
here, particularly since
struction
appellant
what state
consciousness the
judge,
he,
nor the
pears
that neither
warnings
inwas
when the
read to
were
evidence
prosecutor
believed that
presents
him. All of this
a substantial
only
impeach-
being introduced
was
question
appellant
toas whether the
purposes.
ment
knowing
voluntary
capable of a
Miranda;12
rights
waiver of
presented
under
issue
If
were the
this
presented,
On the
basis
the evidence
hear-
case,
remand for a
I would
juge hardly
the trial
in
had sufficient
ing
there
whether
to determine
quite
11. It
clear that
understand,
confession was
his mental
what
he could
appellant
custody.
gave
made while the
was,
to this
or what
rise
condition
U.S.App.D.C.
Hicks v.
particularly
it was
whether
remark —
(1967), urged by
of his
discussion
made in the course
prosecution
precedent
admission,
earlier “confession.”
inapposite.
Although
therefore
Officer
L.Ed.2d
13. 401
testimony
suggestive
Lewis’
of an inter-
change
police,
initiated
hence a cus-
interrogation,
prosecution
todial
is far
relied
a case which
14. The
capacity
less dear and should be determined on re-
understand but
did not involve
sign
mand.
a waiver
rather
refusal
whether
sufficiently probative
actual mis
12. Officer Lewis testified
ato
second state-
understanding
in
to render
the waiver
police
ment made
at the
Pettyjohn
v. United
valid.
testimony appears
station.
That
below:
(1969),
U.S.App.D.C.
69,
custodial minimum Justice includes er there was a valid waiver.15 standards for the role of counsel defense sentencing.19 recog-
at
These standards
following
first,
nize
duties:
counsel
Ill
explain
should ascertain and
his client
to
pursuaded
if
I were
Even
disposi-
and the court
the alternative
and
should
reversed
remand-
this case
available,
including
tions
conse-
trial,
remand for
ed
new
I
for a
would
quences
each;
second,
presen-
if the
resentencing.
Supreme
has
The
Court
report
tence
is available to him counsel
recognized
6th
a
defendant’s
verify
supplement
should seek to
and
right
to
counsel extends
to
Amendment
information and evaluate the conclusions
long
sentencing,16
court has
and this
third,
report
therein;
contained
a
right
to counsel at
since held
available,
develop
own
he should
his
sentencing,
stages,
as at other
report
presentation
in
to the court
right
assistance
effective
urge any ground
which
should
right
includes,
min-
That
at a
counsel17
supports
proper disposition
a
favorable
imum,
accused;
fourth,
he should make
mar-
the aid
counsel
in
special
investigate dispositions
efforts to
shaling
facts,
introducing
evidence
particularly
appropriate
client so
his
mitigating
circumstances
suggest
program
can
a
of reha-
general
assisting
aiding
de-
knowledge
bilitation based on his
of the
present
sen-
fendant
his case as to
community
available
tence.
.18
;20 fifth,
resources
he should insure that
approved
all the
information
relevant
to sentenc-
The
draft
American
ing appears
Project
record.
Bar
Association’s
on Standards
Relating
challenge
15.
19.
faced with
Standards
to the Defense
When
a
to a con-
Function, Approved Draft, 1971,
appeal,
raised for
Ameri
fession
the first time on
Project
hearing
Bar
this
admissibility
a
can
Association
on
court remanded for
Standards
(1971)
for Criminal
Justice
The
§
confession rather than
8.1.
provide
good
new
standards
set out here
a
in Frazier v. United
assessing
attorney
U.S.App.D.C. 180, 188,
136
basis for
whether an
419
1161,
(1969).
has
rendered effective
F.2d
1169
counsel
For the same
reasons,
Accord,
Relating
I would
client.
remand this
Standards
ease for
Sentencing
hearing
Procedures,
issue,
Alternatives and
confession
if it were
Approved
1971,
Draft,
not for the
American Bar
instruction
at
Association
discussed
ject
part
opinion.
of this
Pro
on Standards for Crim
5.1;
Dash,
inal Justice
see
§
The
Mempa Rhay,
128,
16.
v.
U.S.
389
88 S.Ct.
Lawyer’s
Sentencing
Defense
Role at the
254,
(1967) ;
see Moore
Stage
Case,
315,
of a Criminal
54 F.R.D.
Michigan,
191,
v.
355
2
U.S.
(1968).
316
(1957).
167
L.Ed.2d
20. The Offender Rehabilitation Division of
U.S.App.
v.
Gadsden
96
District
of Columbia Public Defender
162, 165,
(1955) :
D.C.
professional
has a
Service
staff which
right
to effective assistance of
investigations
conducts
pointed
so
an
sentencing stage
at
counsel
proceeding
lawyer
go
defense
can
court
guaranteed by
the Consti
thorough
pre-
armed with
and accurate
tution.
report
positive
sentence
rehabilita-
Rhay,
2, 4,
See McConnell v.
plan.
program
This
tion
is commended
(1968)
21 D.Ed.2d 2
:
S.Ct.
study,
Relating
the ABA
Standards
right
sentencing
to counsel at
Sentencing
Procedures,
Alternatives and
therefore,
right
must,
be treated like the
supra note 19 at
observes
stages
adjudica
at other
counsel
program
the D.C.
“could well
make
tion.
difference between
offender
lan-
who
Mempa Rhay,
supra,
jail
guishes
up
at
and will
U.S.
there
wind
(1967) ;
again
successfully
see
Von Moltke
and an
S.Ct.
offender who
Gillies,
family
supports
while
same
receiving
help
reason fronting we can no con- problem. case, our *13 culpability
real concern is not the
counsel the reason for his failure. It is the denial of the 6th defendant’s Murray Petitioner, KIVITZ, A. rights. Amendment resentencing A remand for AND COM- SECURITIES EXCHANGE grounds represents of ineffectiveness no MISSION, Respondent. infringement judge’s on the trial discre- No. 71-1602. sentencing. contrary, tion in On the its purpose sentencing tois insure that the Appeals, States United Court judge adequate has information on District Columbia Circuit. which to base that exercise of discretion. Argued Oct. 1972. judge possess Because the will often Decided Jan. 1973. great deal doubt about the nature and of the character defendant and the propriate imposed, sentence to be the most [e]ven self-assured
may
bring
well want to
to his
ev-
aid
Judge
concurring) ;
Bazelon
United
regard
sel.
fenses,
to assault and homicide of-
Smallwood,
category
charges
States v.
of the
in the
(Chief
Judge
us,
average