William C. COLEMAN, Appellant, v. UNITED STATES of America, Appellee.
Nos. 17176, 17177.
United States Court of Appeals District of Columbia Circuit.
Argued May 10, 1963. Decided May 1, 1964.
334 F.2d 558 | 118 U.S.App.D.C. 168
See also 111 U.S.App.D.C. 210, 295 F.2d 555.
Reversed and remanded with direction to enter judgment for the defendant.
Mr. Barry Sidman, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee.
Before BAZELON, Chief Judge, and WILBUR K. MILLER, FAHY, WASHINGTON, DANAHER, BASTIAN, BURGER, WRIGHT and McGOWAN, Circuit Judges, sitting en banc.
DANAHER, Circuit Judge, with whom BAZELON, Chief Judge, and FAHY, WASHINGTON and WRIGHT, Circuit Judges, join:
We are here concerned with two appeals from post-conviction orders. In No. 17176, the appellant on May 17, 1962 filed his notice of appeal from the District Court‘s order of May 8, 1962, which denied appellant‘s March 29, 1962 motion to reduce his death sentence to life imprisonment. The motion was based upon Public Law 87-423, infra note 8, and Rule 35 of the Federal Rules of Criminal Procedure. In No. 17177, the appellant on June 15, 1962 filed his notice of appeal from the District Court‘s order of June 8, 1962, which denied appellant‘s motion to vacate the sentence of death pronounced by trial Judge Letts on June 30, 1960. This latter motion, based upon Rule 35, asserted that the sentence was “unauthorized by law.”1
Indicted pursuant to
I
The amendatory Act, Public Law 87-423,8 in the main spoke prospectively in prescribing the death penalty unless a jury by unanimous vote should recommend life imprisonment. If the jury should fail to agree as to punishment, the trial judge was authorized to impose “either a sentence of death * * * or life imprisonment.” But Congress was aware that there were pending various cases9 in which we had affirmed convictions of murder in the first degree wherein death sentences had already been imposed, the execution of which had been stayed pending exhaustion of appellate remedies. Separate provision was therefore made respecting such cases “tried prior to March 22, 1962” as to which relief might become available by action of the judge.10
On March 29, 1962, appellant‘s counsel filed a motion to reduce the sentence to life imprisonment. Following
The motion contained no allegation of fact and no proffer13 of testimony as to other “circumstances” which might have tended to mitigate the sentence. To be sure, the statute before us contained no requirement that the “circumstances” to be relied upon must be presented by the testimony of witnesses examined in open court as had been true of the Oklahoma statute before the Court in Williams v. Oklahoma.14 There, a post-conviction inquiry by the Court as to punishment was to be predicated upon the “suggestion of either party that there are circumstances which may be properly taken into view, either in aggravation or mitigation of the punishment.”15 The Oklahoma court had held that the prisoner “waived” the benefit of the statutory proceedings by failing to request a hearing. Since the petitioner had not requested or suggested that the trial court hear evidence in mitigation of the sentence, the Supreme Court of the United States found no deprivation of right or of fundamental fairness in the failure of the trial court to pursue the presentencing procedures prescribed by the Oklahoma statutes.16 It would come with poor grace, to say the least, if the post-conviction successor judge in our unique situation were to be criticized for proceeding to decide the motion to reduce sentence on the only basis upon which it was proffered to and argued before him. He ruled in accordance with our earlier
But he need not have been so limited in view of the purpose of the statute as Congress clearly intended it to be applied as to sentences imposed before its effective date. The appellant‘s death sentence when imposed in 1960 was “mandatory,”18 with no opportunity for a showing of mitigating circumstances, no matter what the claims might be.
Under that 1962 proviso, however, the judge was authorized to ascertain whether or not a sentence of life imprisonment might be justified, and if so, that sentence was to carry a minimum imprisonment of twenty years. Whereas in cases charging murder in the first degree after March 22, 1962, a jury was authorized to recommend life imprisonment,19 as to the appellant‘s case a “procedure” was “established whereby” the judge was “to consider the circumstances in mitigation and in aggravation.”20
We can not suppose that a judge in considering circumstances in mitigation was intended to be more narrowly restricted than the jury.21 We know at once that matters entirely apart from the evidence at a trial may and frequently do—and in proper cases should—affect the punishment to be accorded once the issue of guilt has been resolved, as it had been here. Rule 32(c) provides for a presentence report and specifies its scope to include such information as may be required by the court and “be helpful in imposing sentence.” Rule 32(a) provides that the defendant shall be afforded “an opportunity to make a statement in his own behalf and to present any22 information in mitigation of punishment.” While the facts of the crime are not without bearing, the purpose of the proviso of the amendatory Act was directed to the possible existence of circumstances in mitigation, not of the crime, per se, but of punishment.23
Further to implement the procedure established by the proviso and in aid of the congressional purpose, it is clear the judge was not circumscribed in the inquiry he was intended to make. By the same token previously discussed, he was free to consider circumstances in aggravation. The task of the judge
“is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant—if not essential—to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant‘s life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial.”24
To recapitulate, Congress by the pertinent portion of Public Law 87-423 intended to create a mechanism here applicable to a previously convicted murderer by which the judge might determine whether the case “justifies a sentence of life imprisonment.”25 Congress unlike various state legislatures did not adopt a “two-trial” statute.26 Rather, Congress chose to rely upon the experience, training and expertise of the judge who was to make the appropriate determination “in his sole discretion“—that is, sitting without a jury. The legislative procedure clearly was to be
II
Trial Judge Letts who had pronounced sentence in 1960, retired on June 1, 1961 at the age of 86. Thereafter, except for previously assigned matters involving his sitting as a “special judge,” he undertook no new assignments. Appellant has here for the first time contended that no judge other than trial Judge Letts was competent to hear and act upon his motion to reduce sentence, filed in March, 1962. Neither in that motion for reduction of sentence nor in his later motion to vacate sentence29 was there a challenge by the appellant to the authority of Judge McGarraghy to consider the post-conviction motions. Only in his reply to the Government‘s answer to the motion to reduce was there a reference to that point. There he argued that even if the motion to reduce sentence were being considered by the judge who had presided at trial, it would be “questionable” for the judge to consider the “facts” as set up in the Government‘s answer. It was asserted that Judge Letts “did not sit as a trier of fact.” Accordingly appellant contend-
Had Judge McGarraghy‘s authority so to act been challenged in the District Court, it is possible that in essential respects, the record might have been more complete. Appellant‘s attack in this court not only comes too late, but we find no occasion to look behind the pronouncement in Judge McGarraghy‘s opinion that he deemed himself competent to act pursuant to Rule 25. There was no suggestion to Judge McGarraghy that he not sit because not himself “satisfied that he cannot perform those duties” devolving upon him as a successor to the trial judge, either because he had not presided at the trial or “for any other reason.”31
There is nothing in the amendatory Act to suggest that “the judge” who might be asked to consider a post-trial motion for relief must be the trial judge and no other. Appellant on brief here tells us that the instant record showed factors which
“amply afforded an adequate basis for granting appellant‘s motion without need to resolve the conflicting testimony bearing on whether the homicide was accidental. It would accordingly have been proper for the successor judge to have granted the motion for reduction of sentence on the basis of his examination of the record; and appellant, of course, would have no standing to complain of such a decision.”
We quite agree there was no longer a “need to resolve” conflicts in the testimony. The jury had done so. We further agree that the appellant would have no basis to complain of a favorable decision. The appellant equally lacks “standing” at this point in the proceedings to challenge Judge McGarraghy‘s qualifications to render his decision, for there was no question on this record which turned upon the credibility of controverted testimony.32 The plain fact is there had been no post-trial showing by the appellant in mitigation or by the Government in aggravation which, taken together with all “circumstances,” might have had an effect upon the sentence. Appellant‘s reliance upon his interpretation of the applicability of Rule 25 is totally lacking in substance. Judge McGarraghy was not disqualified.
III
As here, the appellant‘s motion to vacate the sentence of death upon constitutional grounds33 was extensively argued before the District Judge where counsel said: “We are not challenging the conviction in this argument.” Rather, counsel insisted that the sentence imposed by Judge Letts “went beyond that authorized by the verdict.” He contended that under
We do not agree, for the federal statute clearly is designed to apply within “the special maritime and territorial jurisdiction of the United States” which, in turn, is defined, as here pertinent, in
The robbery had its inception in a liquor store wherein were located police officers who immediately commenced pursuit of the appellant across a public street in the District of Columbia. It was in the course of that pursuit that the police officer was murdered in a nearby alley, as detailed in our opinion.36 The area by no tenable construction can be said to have been within “the special maritime and territorial jurisdiction of the United States.” This court had occasion to consider and reject a not dissimilar contention in Johnson v. United States.37 The Supreme Court on appeal noted that the 1897 statute which conferred authority on a jury to qualify its verdict and which had been held applicable to the District of Columbia in Winston v. United States,38 had been deleted from the District Code, effective January 1, 1902.
The Court held, in short, that the federal statute and the District Code were separate instruments. It was pointed out that the effect of the “separation is important and necessarily had its purpose.” The opinion went on to explain:
“The Codes had in the main special spheres of operation, and provisions accommodated to such spheres. There is certainly nothing anomalous in punishing the crime of murder differently in different jurisdictions. It is but the application of legislation to conditions. But if it be anomalous, very little argument can be drawn from it to solve the questions in controversy. The difference existed for a number of years between the District and other places under national jurisdiction, for, as we have seen, the qualified verdict has not existed in the District since the enactment of the District Code, and did not exist when the Criminal Code was enacted. There is certainly nothing in the mere act of enacting that code which declares an intention to give to the provision conferring power on a jury to qualify their verdict greater efficacy against the Code of the District than the same provision in the act of January 15, 1897, possessed.”39
The Court, in different context but nonetheless cogently, reemphasized the distinctive position of the District of Columbia in matters of criminal law in Griffin v. United States.40 There the Court pointed out:
“This Court, in its decisions, and Congress, in its enactment of statutes, have often recognized the appropriateness of one rule for the District and another for other jurisdictions so far as they are subject to federal law. Thus, the ‘federal rule’ in first-degree murder cases is that,
unless the jury by unanimous vote agrees that the penalty should be death, the court must fix the sentence at imprisonment for life. 35 Stat. 1151, 1152,
18 U.S.C. § 567 , now18 U.S.C. § 1111 (1948), Andres v. United States, 333 U.S. 740. But a defendant convicted of first-degree murder in the District cannot look to the jury to soften the penalty; he must be given the death sentence. 31 Stat. 1321, 43 Stat. 799,D.C.Code § 22-2404 , Johnson v. United States, 225 U.S. 405. Furthermore, the Court‘s decision in Fisher v. United States, 328 U.S. 463, makes clear that when we refused to reverse the Court of Appeals for the District we were not establishing any ‘federal rule’ in interpreting the murder statutes which apply in places other than the District of Columbia over which Congress has jurisdiction. In fact, this Court has been at pains to point out that ‘Congress * * * recognized the expediency of separate provisions’ pertaining to criminal justice applicable exclusively to the District of Columbia in contradistinction to the Criminal Code governing offenses amenable to federal jurisdiction elsewhere. Johnson v. United States, 225 U.S. 405, 418.”41
The trial judge fully considered and sufficiently dealt with the contentions in such respects, as the record shows. He correctly concluded that the prosecution and the sentence had been predicated upon the provisions of the District Code. In his denial of the motion to vacate sentence there was no error.
IV
Because the amendatory Act of 1962 was unique and its applicability to this case was a matter of first impression in the District Court, we have extensively explored its impact. We remand only that the judge may conduct an inquiry and the appellant be afforded a hearing pursuant to and as discussed in Part I, supra.
Remanded for further proceedings consistent with this opinion.
WRIGHT, Circuit Judge, with whom BAZELON, Chief Judge, and FAHY, Circuit Judge, join, concurring:
I concur in the court‘s excellent opinion and the result therein reached. I would only add that in my view Public Law 87-423 requires resentencing of the defendant. See Jones v. United States, 117 U.S.App.D.C. 169, 327 F.2d 867, 876-878 (1963) (en banc) (concurring opinion).
BURGER and McGOWAN, Circuit Judges, concurring in the result:
We concur in the remand, but we can find no basis in this record, read in light of the statute and its legislative history, to support reversal on the ground upon which the majority relies. We think a remand necessary only because appellant was not affirmatively tendered an opportunity to speak on his own behalf. Although the point was not raised on appeal, it cannot be ignored in a capital case, which affords a special status to the right of allocution.
(1)
Appellant, represented by counsel highly experienced in criminal matters, had an unlimited opportunity to present to the District Court in mitigation whatever information, evidence or argument he desired. We can see no difference between this and the undefined “evidentiary hearing” now directed.
We are, of course, dealing here with the special provisions of a statute,
At a hearing in open court, the District Judge very carefully refused to begin until appellant himself was present. Counsel for appellant, obviously sensitive to his grave responsibility, made a long and impressive statement which incorporated significant factual information relating to appellant‘s personal life and background. Counsel was not restricted in any way, either as to the length or content of his argument. Had he chosen to offer corroborative matter by way of documentary or testimonial evidence, nothing in the record indicates that it would not have been received. We do not intend any criticism of counsel for not having proffered such evidence; it was his responsibility to decide what should be presented. His statements about the facts of appellant‘s life and background were unchallenged. Further, in this as in other areas of our jurisprudence, the client‘s protection must depend primarily upon his attorney‘s strategic wisdom and tactical skill—his familiarity with all the facts, good and bad, from which his presentation may be drawn. Counsel was here engaged in the most sobering effort at persuasion that can devolve upon any lawyer. The majority opinion, by implication at least, seems to suggest that appellant will be better served if the District Court actively undertakes the conception and development of this effort. We doubt this; and, in any event, Congress has not directed judicial intervention of this nature by the presiding judge.
(2)
When Coleman was first sentenced by Judge Letts on June 30, 1960, after verdict and judgment of guilty for first degree murder, the District Court was bound by the then existing mandatory death sentence.
On March 22, 1962, Congress amended the D.C.Code to provide alternatives to the death sentence for subsequent first degree murder convictions.
On March 22, 1962, the effective date of the amendatory Act, appellant filed in the District Court a motion styled “Motion For Reduction Of Sentence To Life Imprisonment” pursuant to the “resentencing” provision of the amendatory Act and
Although appellant‘s attorney made extensive representations on appellant‘s behalf, he did not request that appellant be allowed to speak. Notwithstanding this, we believe that judicial policy calls for an opportunity for appellant to speak; when so much is at stake, “[t]he most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.” Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961). Although the particular statute under which the District Court‘s discretion was invoked does not expressly provide for a right of allocution, it is probable that Congress, in light of the historic standing of allocution—particularly in capital cases—and its more modern codification in Rule 32(a), passed the amendatory Act with the expectation that allocution would be accorded.5
Moreover, this court, pursuant to its supervisory powers, has directed that under
Having in mind, as we have noted, that Coleman‘s exercise of his right to speak before Judge Letts imposed sentence was pointless because the statute then controlling required the death penalty, we conclude that Coleman has not yet been afforded the meaningful opportunity contemplated by prior opinions to address himself personally to the court empowered to make the decision “that counts.”
WILBUR K. MILLER and BASTIAN, Circuit Judges, dissent from the majority opinion and from the concurring opinions. They would affirm the judgment of the District Court.
Notes
There is no controlling magic in the title, name, or description which a party litigant gives to his pleading. The substance rather than the name or denomination given to a pleading is the yardstick for determining its character and sufficiency.
“Although there was no Court opinion in the Green case, eight members of the Court concurred in the view that Rule 32(a) requires a district judge before imposing sentence to afford every convicted defendant an opportunity personally to speak in his own behalf.”
The ninth Justice in Green, Mr. Justice Stewart, in a concurring opinion agreed on the desirability of the practice, although doubting that Rule 32(a) required the procedure in every case. He stated: “But I do think the better practice in sentencing is to assure the defendant an express opportunity to speak for himself, in addition to anything that his lawyer may have to say. I would apply such a rule prospectively, in the exercise of our supervisory capacity.” Green v. United States, supra 365 U.S. at 306, 81 S.Ct. at 656 (concurring opinion).
Especially is this so when as here the first sentence was imposed by a judge other than the one later considering the possibility of imposing a sentence different from the death penalty.Ҥ 22-2404. Punishment for murder in first and second degrees.
“The punishment of murder in the first degree shall be death by electrocution unless the jury by unanimous vote recommends life imprisonment; or if the jury, having determined by unanimous vote the guilt of the defendant as charged, is unable to agree as to punishment it shall inform the court and the court shall thereupon have jurisdiction to impose and shall impose either a sentence of death by electrocution or life imprisonment.
“Notwithstanding any other provision of law, a person convicted of first degree murder and upon whom a sentence of life imprisonment is imposed shall be eligible for parole only after the expiration of twenty years from the date he commences to serve his sentence.
* * * * *
“Cases tried prior to March 22, 1962, and which are before the court for the purpose of sentence or resentence shall be governed by the provisions of law in effect prior to March 22, 1962: Provided, That the judge may, in his sole discretion, consider circumstances in mitigation and in aggravation and make a determination as to whether the case in his opinion justifies a sentence of life imprisonment, in which event he shall sentence the defendant to life imprisonment. Such a sentence of life imprisonment shall be in accordance with the provisions of this Act.” (Emphasis added.)
“Again, Your Honor, with respect to the Defendant William Coleman, I know that a number of letters have come to the Court with respect to him from people in his home town who have known him and who have known his family. This man was reared, as you know, in a small town in Virginia in abject poverty. He had minimal schooling; but despite the fact that he had minimal schooling, he was able to secure and hold employment for a long period of time. The record shows that he was employed by the same employer for a period of seven years prior to this offense.
“The record further shows that he has no prior criminal record, Your Honor, with the exception of a disorderly conduct charge, for which he received a ten-day jail sentence at the age of sixteen. But there is no adult criminal record.
“The record further shows, Your Honor, that he did serve honorably in the military for a period of a year between 1956 and 1957, and was discharged under a provision which permitted one-year discharges for members of the military with subnormal intelligence quotients.
“Now, Your Honor, what is the Government‘s position with respect to this? Because I think this becomes very relevant.
“The Government does not ask Your Honor to exercise your discretion and allow the death penalty to stand. Instead, they have filed a responsive pleading in which they go to some pains to convince Your Honor that the killing of Officer Brereton was a deliberate killing.”
“(b) Within the special maritime and territorial jurisdiction of the United States,
“Whoever is guilty of murder in the first degree, shall suffer death unless the jury qualifies its verdict by adding thereto ‘without capital punishment‘, in which event he shall be sentenced to imprisonment for life * * *”