William H. Fuller v. United States

Appellant, FULLER, H. William America, STATES

UNITED Appellee.

No. 19532. Appeals Court

United States Circuit. District Columbia 17,1968. 18,1966

Argued and Jan. Feb. 20, 1967.

Decided Nov. Rehearing En Banc

On Sept. 1968. 3, 1969. March Denied

Certiorari See also, F.Supp. D.C.,

See Stoddard, and A. Ezekiel G. Messrs. (both Layne, Washington, D. C.

Alvis appointed by Court), with whom Evans, Walter T. and James Messrs. C., Robertson, Washington, on D. were brief, appellant. for Attorney, Braun, De- Mr. Richard L. partment Justice, with Messrs. whom Q. Bress, Atty., Frank David G. U. S. Epstein, Nebeker and David Asst. U. S. Attys., brief, appellee. were for on Mays Charles A. and James A. Straz- ap- zella, Attys., also entered Asst. U. S. pearance appellee. for Burger Fahy,* Before „ and Leven Judges. thal, Circuit LEYENTHAL, Judge: Circuit charging a indictment On three-count degree felony-murder, first first premeditated murder, rape, appellant and charged counts on was found man- one and three convicted slaughter a included offense lesser judg- count. motion for a A notwithstanding acquittal ment of rape denied. verdict on the count was Fuller, F.Supp. States (D.D.C.1965). life with a Concurrent felony-murder, has sentence he and 10-to-30 sentenced 5-to-15 years respectively manslaughter and rape. challenges appeal On this he admission evidence of two incrim- into inatory oral statements and the search * Fahy 13,1967. Judge April Judge Circuit on Circuit became Senior wearing them, have to talk to for and seizure apparel, some his he chose at trial. to talk them the interview could be introduced spot po- héld either or at a local I quitting lice station. time and Sunday morning, August premises time noisy, Some were crowded and 57-year a garbage returning ga- an assailant accosted trucks to their Negro along rages old a day. woman as she walked leaving Ap- and men for the Washington street, dragged her into an pellant objection he said had no to ac- alley stores, some while behind as- companying the three officers to saulting sexually, Montgomery her death County her caused police station. This body blow on head. The p. Appellant was about m. 4:05 testified day lying found the next a stairwell arrest, that he considered under himself police though at the rear of house. The two he conceded was not then told investigating crime, officers de- both he was under arrest. tectives, found several strewn items Spring police at the arrival Silver On about the scene of crime obtained 4:15, Metropolitan at about station picked up vicinity other items given appellant were police officers and prior discovery body. others small, back unused office small, One of items these red ad- about He was told for their talk. station dress storekeeper book found in investigation subject and dis- shortly shop water drain behind his weekend. over the his activities cussed opened after he Monday. for business crime, he he was asked about When page appeared On the first of this book anything didn’t about it. said he know the name and address of H. Ful- William the address him officers showed ler, appellant. interviewing After appellant book, his. admitted was persons neighborhood in a vain got explain if he could how Asked eye-witnesses, search for the two officers crime, he said he scene of the had drove to the address indicated Shortly appellant it. thereafter lost book, appellant, asked for and learned happen them if he told asked what he was Washington at work at the Sub- it. He was told that it con- about Sanitary urban nearby Commission in crime, placed cerned he would Maryland. They place were taken to his might arrest and he said under whatever employment by Montgomery County a against him. asked if his be used He officer, in an police They unmarked car. and mother would have know was told to had supervisor appellant, locate and find she would if he admitted com- out By identified appellant. themselves to mitting Appellant then the crime. said this time p. was about 4:00 m. on “grabbed that he the woman.” This August 17, day after the homicide. shortly came after statement the inter- point, began, according At the facts are contested. view about minutes hearings separate But officers, two held be- were to 15 minutes accord- about Judges ing appellant. fore who two different District to The then officers an- opportu- evidently appellant had arrest, and utilized the nounced under ad- was nity evaluate to observe demeanor and vised him that he did not have to make testimony credibility. at relative The a statement and that statement could identical, hearings substantially against both was be admitted in evidence him. judges Appellant rape and conclu- both reached similar then related and facts, lasting detail, sions. those The found homicide in in a narrative judges,1 twenty are these: fifteen or minutes. appellant there The told was officers uncontroverted speak toward wanted to him an in- abuse directed about violence even Washington, appellant cident in The he did not before this confession. opinion disposing hearing Fuller, ported 1. The F. as United States v. during (D.D.C.1965). Supp. held a re recess the trial appel- shorts, patent leather to and reddish brown adverted even most that shoes,” application and that he set forth in the testimony is a statement lant’s crime, patted times, on as “instrumentalities of couple warrant tapped was e., The way.2 Both i. murder.” warrant 1st shoulder, in a non-violent specifically Judges authorized a search the conduct described District appellant’s “exemplary.” As a re- first floor of home. policemen involved police ob- appellant sult this search the secured was the statement Prior to get analysis jects go to for scientific which cul- he could down he told if wished testimony expert re- the minated at trial machine from the soft-drink a drink vealing presence appel- house. of blood on group in the station had seen trousers, lant’s some of which was medication was Appellant’s claim to detecting headache, type, and fibers victim’s had a he mentioned he given aspirin recovered from surface tablets.3 vic- was two clothing right tim’s that matched color Appellant not told of a to appellant’s texture threads from trousers one. lawyer, not ask for and he did appellant and red suggestion shirt. There is mother, sought phone accord- his but following day, August 18, hearing ing testimony credited Metropolitan police an arrest obtained judges, appellant seemed con- rather appellant, warrant 1:30 about had his mother cerned about whether that afternoon he was taken before he done. what know magis- Montgomery County, Maryland, ad- trate for extradition. There he was appel- confession, the oral After charges against pending vised of the state- to make written lant was asked him in the District of Columbia although do, ment. This declined he hearing. right to an his extradition signed indicating that he a statement re- informed him of his confession, but make a written refused to silent, apparently only ref- main orally conceding everything he said erence to counsel meant counsel writing (This not intro- true. purposes ex- could of an be obtained for evidence, appellant’s mo- duced since Appellant pro proceeding. se tradition although confessions, suppress tion to his waived extradition. confessions, was denied as the oral granted statement this written appellant being As was escorted from ground appellant should have custody the Rockville Courthouse in the arraigned promptly after his first oral detective, Metropolitan police appel- of a confession.) point question- At that appeared, lant’s mother her- identified request ing was discontinued and at detective, self to the and asked whether Maryland officers the District might she talk with her son. The detec- fugitive police appellant arrested as a might explained tive he that she but that justice, pending pro- from extradition present, would have to be and advised ceedings. might appellant anything say to that he might against his mother be used him. evening Metropolitan Later that Appellant his said he to talk wanted police from secured search warrant designated mother. A room was judge of the Court District Columbia appellant courthouse for talk his authorizing the seiz- General Sessions appellant mother and there admitted appellant ure told of- clothes his mother he had killed woman during he ficers wore commission with his hands. application The crime. Again, the search for of “dark these are facts as testified and seizure shirt, pair police by trousers, men’s brown red and found District Appellant only request testified tlie officer did The officer said the n while appel- aspirin repeating on”, himself, came from he “Come since skipped working it because lant “better tell them all about lunch case. way.” knew Judges. Appellant (3) prosecution denied that he had If the fails to estab- voluntary, been advised of to remain his silent lish confession was he asked product and testified that the officer physi- of either psychological whether he have to tell his mother would cal or coercion dis- whereupon happened, places what the officer the free will of the accused. might said because she well presentation effectuation eventually anyway. find out privilege against the constitutional self- incrimination is a common concern of Appellant was then returned although doctrines, all of these Columbia, their con- District of and at about 4:35 are tours neither preliminary defined nor limited that afternoon received a protection privilege. hearing to the of that of the Court of before fully General Sessions who advised him Mallory A. Doctrine against concerning privilege self- his primary contention defense right to incrimination and his have coun- counsel, pre-trial trial hearing raised both at the appointed represent sel him. suppress on the motion to As a result of the determinations at trial, at confession was inad- pre-trial suppression hearing and the Mallory missible under rule of hearing, confession, trial the first oral mother, the admission to his ar- and the 1 L.Ed.2d 1479 and its clothing warrant, ticles of seized under progeny, which establish that an admis- were admitted evidence at the trial. sion cannot be used in evidence if taken at a time when the Appellant rulings each claims of these police were viola- was reversible error. 5(a), Fed.R.Crim.P., tion of Rule requires making that an officer an ar- II Appellant’s Confession person rest shall take the arrested “with- Detectives. unnecessary delay” out before an official empowered persons charged to commit We consider first the admissi arguendo with crime. We assume bility appellant’s oral confession at the principles 5(a) applica- of Rule are Montgomery County police station. though ble even the arrest outside Three inter-related strands of law must the District.4 be admissibility considering taken into account in 5(a), of this confession. Rule Stated and the line of Mal summai'ily lory-type introductory juncture, cases, at this are directed at forbid ding post-arrest doctrines hold that a defendant’s con confinement and inter rogation fession is inadmissible— prompt without the determina objective magistrate tion (1) If police was elicited probable there is cause to detain sus a time when the accused should have al- pect. However, we see no for dis basis ready brought, pursuant to Rule turbing finding the of the who 5(a), magistrate Fed.R.Crim.P., before a pretrial appellant heard motion that who would have advised him of his began was not under arrest when he to to arrangements remain and silent made preface make his statement. We con counsel; for consultation with or question ap sideration whether (2) If it police pellant was elicited was under arrest at the time counsel, when accused was without a general his statement some observa time and under circumstances re- appellant’s which presence tions. If par quired either ticipation assistance counsel questioning in the was volun waiver; or its intentional or tary, and at a time when no arrest had 40(a) prompt presenta- 4. Rule only applies insists on -when officers from one dis- magis- committing tion a before federal authority trict base their to an ar- make person trate when a is arrested in a rest in. a different district on a warrant nearby 40(a) by district. Rule its terms issued in their own district. appellant to inapplica- did not intend arrest Mallory officers occurred, rule is pur- es- further information unless and until witness for of a Detention ble.5 possi- probable It was cause. is neces- tablished asking questions pose of might to able himself be arrest, detention ble that he if the sarily at least an prove explain or stopping, enough.6 his loss book a mere Even is brief oth- as to source information may to be a however, an arrest constitute custody they themselves ers. identified assert When purpose to is officer’s they gave —they plain were connection clothes— over individual likely option talk appellant to may crime, whether purpose he be more investigation. justify a them their simul- to at all about to forth in order to set willing Appellant to talk in- he officer said an taneous search.7 Where them, they per- he custody to asked whether over tends to establish employ- trig- may place involved, to at his control wanted talk minimal son obligation comply Rule ger ment or station house Silver at the to his Spring. Appellant rather 5(a). denies he would the officer said Even where place employment. This his make an arrest not talk at his to he intended obviously testimony, may sufficiently an ar- item of must manifest which actions given scrutiny, subjected compliance require with Rule to close rest to many ap- goes (a).8 officer credence fact Where the accompany asking pellant’s co-employees person in attendance point were time, place, hour, quitting similar police at that him to a station garage noisy to in- it where alone be sufficient and that was fact returning. 5(a) unless protection The de- of Rule the trash were voke trucks request place reasonably they quiet it clear that tectives testified saw obligation compulsory nearby and not a for conversation. involved.9 they police Maryland At station following room, upstairs case us the before unused were an shown police by the of- containing facts were testified leather and some table accepted testimony began they chairs, ficers and their by where sat down judges: making district both to his their conference. Prior grabbed he wom- the statement that ap- up drove When detectives an, get appellant he was free to was told only employment pellant’s place vending a soft drink at the machines linking appellant the crime was item they way passed to this room. bearing name and his an address book Appellant he crime. Al- he believed found though testified that near the scene got appellant from time was under arrest address book made probable Appel- suspect into the officers. car with the did not establish testimony admittedly short of shared lant’s fell cause arrest him—a view outright arrest,10 an but court. declaration of District Court U.S.App. agents F.B.I. did 5. Scarbeek question old, they Seals, 18-year cert. when D.C. home, ques denied, L. were with him at his U.S. brought him him tioned after and cases cited. Ed.2d 1077 to the F.B.I. office. 6. See Rios United Compare 9. ALI Model Code Pre 1431, 262, L.Ed.2d 1688 4 80 S.Ct. Arraignment 3.05, & Procedure § States, (1960); 125 Brown (Tent. 1, Comment at Draft 120-121 No. 43, 976, U.S.App.D.C. 979 365 1966). (1966). Appellant 10. testified that detectives Henry States, 7. v. U.S. See United they me, “said want to talk to wanted 4 L.Ed.2d 134 me; station, to take me to the talk to U.S.App.D.C. them, go; States, and I asked I have did 8. Seals v. United denied, they yes, said cert. would be the best F.2d 1006 go.” I L.Ed.2d may present purposes any we assume he enemies, er had He etc. said he support testimony if shortly his believed would had lost it. But he was after Howe Mallory his mo book, claim.11 ver denying appellant shown the address asked sup judge, happen tions motion what would if he he told what press, knew, get, made it he did not be clear that how much time he could would appellant’s events night. lieve the version of the up he have locked be over He off and did believe anything the account was told if he had with do matter, icers.12 He concludedthat the detectives he would be arrested and it probable to arrest up did not have appellant, cause would be the courts to decide what fully under officers to do him. that, appellant had stood and that “Shortly thereafter he said that he reason to think he was arrest at under us, grabbed would tell that he had time. 5(a) woman the street.” Rule did appellant It is never conceded require that the detectives break off after, he under until told was arrest try arraign appel interview and ques- important, relatively this is brief lant rather than allow him to make an tioning approximately 15 minutes. immediate elaboration of the mere as pur- The pose their detectives testified that guilt.13 sertion of The detectives told appellant’s find out was to how They him he was under arrest. warned got notebook scene of crime again him anything he could said (whether given anyone else, he had against him, used and at that time he etc.). Appellant was account for asked to proceeded detail, step by step, to relate in his quired why over in- actions the weekend. He happened. what had He related in effect being he was asked about that he was in a state of excitement when this, police and was told the were in- girl left unrequiting he his friend that vestigating rape-homicide committed night, fateful victim, that he saw and seized the appellant over the weekend. At first screamed, hit her when she any knowledge denied of the matter. had sexual relations. During the interview he was asked to identify red Mallory’s address book. He was command that an ac further asked if could he account its cused be magistrate taken before a “as presence crime, quickly at the scene of the possible” wheth- has been inter- Appellant’s testimony 1 1. normally of his under dealing pre- involved in standing sumptively would not be but decisive man, “reasonable” to make Compare be material. United v. States clear that no forcible in- detention McKethan, F.Supp. 324, (D. 328-329 tended. D.C.1965), (D.C.Cir.No. aff’d order See, e.g., 73, May 24, 1965, Tr. hear- 20059, 1966), Judge Toungdahl where ing. The trial also credited the states “the test must be not what the de account of the officers above that of * * * thought, fendant himself appellant. necessary is not to con- man, what a reasonable innocent of position sider his further it was not crime, thought would have gave ap- material whether the officers * * * shoes, a. defendant’s pellant option being interviewed man, interpreting reasonable these words place employment, they at his stat- [of the detective] and the acts accom ed, they or whether as he testified told * * panying them McKethan has him wanted to talk to him at recently approval been cited with police station. Hicks United (July 7, 1967). 382 F.2d 158 See Walton 334 F.2d We are (10th 1964). not called on this case to too, There, Cir. general consider whether and how this guilt during defendant’s admission of rou- subject questioning test police to modification where tine station the officer was or should have been interrupting caused his arrest. After suspect— aware of a condition rights, interview to warn him of his perhaps police dazed or in a state shock— continued to take his statement. required may Mallory so that to the officer be held no was bar to its admis- steps, beyond take some those additional sion. every warning objec- state a that with the accords preted inadmissible to render police jurisprudence. tives of our to accused made an ment lapse The time subsequent to his arrest. warning announcement -statement, here but arrest and between reasonably were neither un intended nor important, moments, is, while matter terminating derstood as the interview controlling. our Instead admittedly not fact, they that do not think had we overriding concern an shown cases have as This not effect a matter law. and taken person is arrested lest a who interruption or case of detour either an purportedly custody police, into rearrange questioning, to initiate or arraignment, prompt purpose for bringing questioner, or as a new detour, physical or subjected to a instead say changing do not that the scene. We purpose elicit temporal, for the taken prolonged police continue a could ing accused Where an a confession. having grounds probe to arrest after may street, the officers arrested on the under inman the station house. But journey police interrupt to the not their questioning was circumstances where begin interrogating him at station to rearranged being initiated begin may of the road.14 Nor side being continued, rather and continued interjection questioning into such relatively for a extent that clarified brief Recently booking.15 process conclusory and filled out a statement arrests court held that an officer who has involvement, do not consider we probable suspect assumption of his protective the announcement and warn duty to take is under cause for arrest terminating ing had effect of magistrate in him interview. stead him another officer whose taken to given to consideration purpose question suspect We is to ruling Naples possibility guilt, order to obtain evidence significant change took in status States, . depriving place the sus (July 25, 1967) 382 F.2d arrest — pect the scene—the of freedom to leave Here, however, appellant ar- was not police to ask further lost all lawful rested, probable to nor was there cause questions. There would reason him, arrest police until his statement at only providing the such a blanket rule grabbed station that he against questioning certain assurance being questioned and woman. He was proof really elicit that is intended explain away casting asked items sus- pro guilt purposes. But trial picion when he uttered the words jurisprudence have tective rules of our him involved with the deceased and led provide a maxi as to been fashioned so to his clarification and elabo- arrest. His insisting on protection mum of without concerning ration involvement rigidity interferes with an absolute part of a con- continuous narrative. The society police administra fair needs of tinuity of the statement would have says defendant The fact that a tion. more obvious but more real had the enough incriminating re something police permitted officers the interview quire for seal not a warrant detention is any continue without announcement. hermetically. ing There him off to declare that be unreasonable possibility and misunder of confusion continuation of the has confession been standing. at bar the in the case Even impaired merely because the officers took manifestly statement, though appellant’s anything steps helpful that were if require enough and indeed to warrant by making suspect an announcement detention, compulsory blurred warning ap by renewing just extent, arrest and it was some what pellant There are against him, said he had done. be used statement could U.S.App. Spriggs United 119 U.S. Greenwell (1964). App.D.C. F.2d 283 D.C. 336 F.2d by possibilities prevarication, requirement of as well ed of Miranda v. confusion, Arizona, 436, some con- of State warrant 86 S.Ct. U.S. 1602, questioning. (1966), guarantee- We think of the 16 L.Ed.2d 694 tinuation ing protection suspects of risks and assistance of counsel to the balance putting questioned by police custody. burden on while in achieved a But best justify question- focusing police insofar as we are now on who seek to excluding ing protections, rule in the of admissions from arrested absence persons permitting previously should did in Miranda in who have been Court brought right magistrate judicial- police to before a show waiver ly showing general rights, advised of their see no counsel. The burden we basis upsetting unnecessary delay there was no determination of the specific District reinforced burden of show- Court! ing pre-ar- the continuation B. Lack Counsel break, questioning, without rest Every obviously confession is gather trial, merely proof for the not critical confrontation between the accus sought an elaboration for sake of state, ed and the where counsel could certainty clarity relatively brief render valuable assistance. Miranda v. compass. 467-479, Arizona, State of 436, 384 U.S. differently feel if we We (1966). underlying 86 S.Ct. 1602 The dissenting premise shared the of our col recently doctrine was and ex reiterated league, officers Fuller took tended to other confrontations in United against the station house his will awith Wade, 218, States v. 388 U.S. 87 S.Ct. obtaining a view to confession. But two 1926, (1967). 18 L.Ed.2d 1149 But this judges, opportunity both with as given constitutional counsel was credibility, sess have found that this was only prospective requirement. Johnson comparable not ac case. Without Jersey, 719, State of New 384 U.S. witnesses, justi we feel cess do not 1772, (1966); S.Ct. 16 L.Ed.2d 882 overturning fied in their determination. Denno, Stovall 293, 388 U.S. 87 S.Ct. approval judges fairly The two 1967, (1967). Appel L.Ed.2d 1199 hearing indicated the comment of 1965, lant was tried in and this court questioning that the the officers apply does retroactively, not Miranda see “very police They fine did work.” La Shine v. U.S.App. specifically part not focus on that 71, 1, D.C. 72 n. 374 F.2d n. 1 questioning warning. followed (1967). questioning was treated both question We turn to the whether the essentially judges counsel and unified light confession was inadmissible purpose, time and terminated Illinois, Escobedo v. State of 378 U.S. prepare when the came officers a writ S.Ct. 12 L.Ed.2d 977 ten statement. Defense trial counsel and Massiah v. United argued question from its outset the (1964). 12 L.Ed.2d 246 ing Mallory. was in do violation We Massiah, think, bearing we has no on require for, a remand addition the first confession. There the Court approval judges of the district al eliciting statements, condemned the ready noted, our own consideration of fashion, clandestine from a man under significantly the nature extent brief indictment, presence without following on-going questioning lawyer already he had obtained. warning plain to us did makes condemning interject taint the con Nor is the confession inadmis disregard police duct of the officers as a sible Illinois, under Escobedo v. State Mallory. of Rule 5 and 84 S.Ct. 1758 As significance Mallory Johnson, rule elaborated in 384 U.S. at 733 unquestionably has been reduced as to the Escobedo decision govern- group since are (378 trials June rests of factors U.S. 1758), amounting However, 490-491, at the over- of lack of voluntariness. S.Ct. vitiating during trial, hearing, a while the counsel to a denial of all Mallory again principal (1) investigation has focus was on the the confession: (2) aspect; problems, he particular some incidental there was on a focused (3) investigating custody; probing police the whether been taken in as has making lending pressured appellant interrogation itself process officers into of a incriminating profound eliciting has a confession. statements Because significance undertaken; (4) suspect protected has the the values of been excluding involuntary opportun- requested rule confes- denied the the sions, (5) independ- lawyer; ity we have undertaken an consult effectively police warned canvass of record to ascertain ent not the have prosecution right Wheth- established his to remain silent. whether him of voluntary In the first three ele- this was a confession. er or to what extent regard present appellant’s case we sensitive to have been ments were resolved, principle is not questions not Miranda that need even where are application, plain under the facts accorded retroactive whether for it is require- prospective reliably found District Court or not its four-fold objectionable key ele- ments were in fact met has a bear- of last two neither abiding ing issue on the resolution of ments infects this case.16 voluntary. of whether confession was extended The fact that we have not 1966, shortly decided after Johnson for ap- Escobedo to Miranda the contours automatically con- that Miranda not did prospective application, not and have announcement, its trol cases tried before retrospectively, plied not Miranda does Supreme cautioned, Davis Court see that we indifferent to the need mean are Carolina, of North State proper to strike a balance between 1764, L.Ed.2d state and the criminal defendant. (1966): Supreme prospective Court’s decisions on are, indeed, retrospective application in cases The review of voluntariness part of In addi- the balance struck. prior which the trial was held tion, shortly Supreme appear, will Miranda our decisions in Escobedo and keeps mind, we, that Court and so do any these not manner limited vigilance must to assure be exercised contrary, fact decisions. On agents conduct the State that a not advised defendant was sufficiently fair to retain convictions his his to remain silent or prior based on held confessions at trials right respecting counsel outset required prosecution to Miranda. required interrogation, now showing to make a the confession significant Miranda, factor voluntary, now turn to and we considering of state- the voluntariness problem of voluntariness. With volun- established, later made. ments tariness see more rea- we retroactively imposing require- son for though requirements Mi- Even any ment of counsel in this than in case “directly applicable” randa are involving other case confessions. trial, prior are “relevant Voluntariness C. made issue voluntariness.” We appellant’s appraisal con- a careful hearing ap During pre-trial light principles, fession of these pellant’s motion counsel stated his prosecution are we convinced that suppress the confession was based Mallory, solely alleged on an established his statements were violation of , expressly contention “voluntary”. disavowed rejected appellant’s Texas, The motions Clewis State of allegation 1338, 1339, that ho in vain al- asked to be L.Ed.2d telephone lowed to his mother. conclusions of sider whether We share evident the admission to the though Judges District that even both mother would have been admissible begin- apprised prior appellant at the confession were inadmissible. investigation ning present that was en- applicability That counsel, told he was not the titled to he was doctrine that excludes admission obliged Further, “poisonous to make statement. that a fruit the tree.” slightest sup- find the for we not basis Considering by the itself admission posing physical pressure exert- that was by appellant mother, made we his be- possibility psychological ed. As to the gin by pointing out that not there is appellant’s made to inducements overbear slightest suggestion police that the lured will, we no was clear that artifice are .her there further admission evoke Appellant employed, promises no made. appellant. from The uncontested fact graduated elementary from school and Maryland that she went to on her own high year dropped out in his proceedings initiative. After extradition questioned for school. He was completed Rockville, had been she ask- he acknowl- matter minutes before escorting ed the officer could whether she edged guilt. provided by his The room speak respond- with son. The her officer Montgomery County for authorities objection, ed long he would have no so questioning merely the office, was an unused they both that he would realized leather chairs and furnished with present. have to remain officer tes- table, adjacent squad detective’s earlier, tified that about five minutes room. appellant when was turned over him District, for return to the he warned question is whether the appellant rights. of his There no was prosecution appel established that has request privacy, appellant either lant’s will not had been overborne expressed when he desire to see his Although police extent of officers. mother, byor the mother when came she prosecution burden on was specifically over. When the officer in- judge, differ trial and articulated appellant dicated would have judicial expressed ences have been present, appellant replied to remain opinions appropriate standa right. all same This caveat was rd,18 subject problem presents no repeated appellant’s when mother actual- this case for his statements ly them, came over to and officer’s objected plain face record make presence challenged was not possi perceived genuine trial no attendance, ap- to. With officer bility that the was not volun confession pellant’s mother asked him he had what tary, upsetting and we see no basis done, appellant repeated prior and his his conclusion. that he admission had killed a woman dropped his address book near Appellant’s Ill Subsequent Admis- scene. to His Mother sion Pres- do We not find this officer’s ence Detective. shocking Ap conduct or unwarranted. We think the Court was cor- District pellant being was an accused murderer denying- suppress rect in the motion to waiving returned to District after by appellant the admission made to his Appellant and mother extradition. his mother. other, had a human to talk to each granted, At the appellant outset we note we do not which officer upon legal right consider and are not called to con- to see his mother alone majority opinions concurring See Killough 18. See 114 U.S. (en App.D.C. 305, (1962) in Clifton v. United 125 U.S. E.2d 241 App.D.C. banc). 371 F.2d 354 cert. denied, L. (1967) Ed.2d 341 and cases cited therein. incriminating garments war- time,20 them under seized nor did either at this “fruit of place At the rant» were private to talk. couched for a terms ask argument poisonous pre- hearing, defense counsel tree.” The pre-trial when judges ap- at the two sought officer that sented to the district hearings from this to elicit certainly predicated on the conten- pellant under arrest was then admission, appellant’s “in confession at tion that he made when custody”, tainted, Maryland police yet on the station was officer insisted inadmissibility his con- listening to his conversation clothing rea- in- mother, replied fession rendered the likewise the officer why admissible, supporting I since the affida- explanation: “That sonable my undeniably cus- that the officer vit revealed he was stood —because surreptitious relying on tody.” of this state- This was details ment eavesdropping in Massiah. for the averment that like basis “positive” he aware described Both mother were and son apparel Appellant appellant’s presence was to in of the officer. be found right agreed already silent home. his to remain we have of But been advised might anything judges confession not the fact that both that the and of say against illegally suppressable. him. obtained or could be used ' “expanded appreciates that This court argued appeal, also On counsel obtaining confes- concepts in of fairness that under cases like Gouled by accompanied cor- sions been 298, 309, 261, 41 U.S. S.Ct. 255 greater complexity de- in respondingly principle (1921), 65 be L.Ed. 647 termining has will an accused’s whether Amend came that the Fourth established Denno, 378 v. been overborne.” Jackson ment barred the seizure of “mere evi 1788, 368, 390, 1774, 12 84 S.Ct. U.S. dence” a crime and of tolerated (1964). not think But do L.Ed.2d 908 we or seizure of the fruits contraband and admis- of the circumstances of a crime. The vital instrumentalities should “unfair” so that it sion were ity question of that was drawn rule truly voluntary. being purged as California, 384 Schmerber v. State 1826, 757, 908 86 16 L.Ed.2d U.S. S.Ct. garnering a confes Of course upon parties and we called permissible more artifice is no sion for we additional memoranda. While achieving some the same result than Supreme considering these, were People Spano v. State cruder coercion. granted Hayden War Court den, review v. 315, York, of New 360 U.S. 79 S.Ct. (4th 1966), which 363 F.2d 647 Cir. (1959); Leyra L.Ed.2d light promised on to shine authoritative 716,, 98 Denno, 74 S.Ct. 347 U.S. question. held We have this troublesome (1954). there were L.Ed. 948 stratagems Here guidance. for that case or unfairness reflected Supreme May On Court appellant’s free will. vitiation of repudiat- opinion explicitly its released properly received second admission was ing step notions as out of with sound in evidence. Amendment, policy of the Fourth Appellant’s Fifth, any dis- its with the IV. Seizure interrelation Clothing purely proprie- superior on under Warrant. tinction based tary objects of a search interest appellant court all reached this Until Penitentiary Warden, bloody Md. suppress and seizure. his efforts Wade, obviously times an ac- United States v. There are when (1967). right But 18 L.Ed.2d 1149 talk S.Ct. has a constitutional cused police arrangements privacy private, are re- such quired his counsel way security arrange in the course an officer is in such when must returning right. infringe an accused who has There as does not may extradited. an accused has also be times when counsel,” compare “substitute * * * broadening Hayden, en the form regard categories seizure, subject (1967). We evidence L.Ed.2d rejecting thereby creating Hayden confusion considerable conclusive basis argument constitu- appellant’s his the law.” U.S. at August at 1651. rights tional were violated procured a warrant officers when We do not whether decide now clothing that to helped the blood-stained seize clothing suspect worn at the scene identify his connection part crime of the “means” n of the crime within Rule murder. 41(b) justified Such a un- conclusion could be parties pro also asked We interpretation der a that consider- broad question vide memoranda clothing ed the criminal’s at the scene of compatibility warrant with of this crime, of a the crime to be means requirements 41(b), Fed.R.Crim. of Rule g. clothing helped e. cases identity, where specifies P.21 that a warrant That Rule pulled conceal such hat as a “may this rule to be issued under search down, pulled up, both, pos- a coat or or any property (1) for and seize Stolen sibly stocking a ski or mask over or embezzled violation of laws face, clothing and also in cases where Designed States; (2) or the United by being appropriate the time intended use is or for or which has place calling pres- avoids attention to the committing a crim used as the means of ence the criminal. offense; Possessed, (3) or inal led, control prefer We to rest our decision on the designed or or for use or intended ground objection that no made in of” which is or has been used violation 41(b) (2) the trial court that Rule not authorize a warrant for does provision an irrelevant clothing worn Code. States at the scene the do crime. We stating printed In what affidavit the type deficiency consider this the that specified “alleged grounds the be were regard plain we should error “affect- for of search and seizure” affiant the ing rights” 52(a). substantial Rule within ficer “in inserted that the clothes were No violation aof constitutional strumentalities” of the crime of first although involved. And the issue could degree for murder. There is no basis be framed in terms of reliance on a statu- disputing applica bona fides of the the tory “right,” Supreme the Court indi- tion; the it accords in with substance Hayden cated particular that the lan-. approach Guido, used in United States v. guage “is attributable more to chance 1, 3-4, denied, 251 F.2d cert. 356 U.S. judgment.” than considered 387 U.S. at (1958), 2 L.Ed.2d 843 S.Ct. at Rule the Court justified where the Seventh Circuit the pointed out, merely incorporated the cate- seizure “in bank robber’s shoes as gories then deemed within the ambit of strumentalities” of the crime and noted constitutional seizures.22 “get away” that were from used to ruling the view of Supreme Hayden, scene of the crime. the sus- taining Hayden Court its warrantless indicated awareness search for and “pressure clothing seizure against accused, evi the [mere it would rule in be tak- anomalous for dence] federal courts has this court to Code, According 54(a) (2), 301, dealing to Rule Title Section the rules applicable Commissioners, including detailed, the issuance of warrants is more relating beyond Rule 41 its to the issuance enumerations do not of search extend categories warrants, apply 41(b). pi-oceedings of Rule also be- judges fore of the District of Columbia Landynski, Sessions, Court General See Search and one of whom Sei- Supreme 53-61, issued this warrant. zure and On face of Court op application (1966); appear Cornelius, and ref- 82-84 the warrant The Law (2d erences Search Federal Rules. And we Seizure 358-60 ed. provision 1930). note that while the in the D.C. justice clothing think interest of particular we do not suppress a search magis- requires be entertained application ato after made appeal. first time on Brennan’s permission. Justice trate for points Hayden opinion for the Court V protected the values out rape conviction, As find no we pri- right of are the Fourth Amendment grounds other merit discussion and vacy un- from intrusion the freedom judgment conclude that count authority. general der indiscriminate must be affirmed. was as- interests “Protection these judgment As entered on first by prohibiting all ‘unreasonable’ sured verdict, however, murder the court requiring seizures, and searches and is, ordering rehearing sponte, en banc sua particular- warrants, use of presented by of the issue the contention searched, ly place ‘the to be describe the trial court committed reversible seized’, persons things there- to be failing error to instruct magistrate interposing between ‘a ” one, it could not both on count convict police.’ citizen and charging degree felony-murder, 87 S.Ct. at 1647. charging two, on count honor Assuming must trial court that a (as murder reduced the trial court clothing objection to the seizure charge premeditat- from a of first wording grounded timely on the murder).24 ed permit 41(b) this would Rule Entry affirming order the con- prosecution trial to conduct rape stayed pending viction of will be Permitting evidence. other admissible question. determination of this appeal objection would raised on hardly So ordered. trial. undo the This appellant raised countenanced (dissenting): Judge FAHY, Circuit appeal contention time on the first prosecution that evidence offered Whether or not there was error with, say, book- was not in accordance in of our decision instruction reason clothing entry This evidence Naples States, U.S.App. statute.23 120 nature, in the kind of evi- is reliable 131, 508, 516, 123, D.C. F.2d must 344 analysis permitting scientific hearing dence await en to banc referred encourage which the seek accordingly my opinion courts I court. limit police use, in confessions contrast with I consideration confessions. right of the accused. No fundamental find in this connection. reversible error point of.privacy This are, view, invaded. my in There three confessions “plain affecting error substantial appellant’s in oral involved this case — rights” reliance on so much as belated “grabbed woman,” statement statutory classification that at time of arrest, oral state- made formal his before passage extended all detailing items that then arrest, ment after the formal appeared presumable leg- to be within the crime, his the account of oral say reach. we islative While do not day his statement made next moth- technicality objection is a mere presence policeman. er in of a blandly ignored by court, can be during a trial first two confessions were made (1964). degree § U.S.C. ing 1732 defendant of both first felony-murder degree murder, appellant guilty 24. The found of first right held that a substantial defend- one, murder on man- count and of prejudiced ant had been because the trial slaughter Appellant on count two. con- refusing court “erred in jury to instruct charges given tends that violates appellant guilty find could not Naples States, instruction in United both and second U.S.App.D.C. 123, 131, 508, murder.” Naples court, division this in reversing judgment on a verdict find- interrogation, and, persons in-custody priv- ac- to advise accused of their secret cording ilege testimony against of Detective to the self-incrimination.” Alexander, this, it was in who assisted fairly say Moreover, I can appellant had confessed twice until implications Escobedo, as here insofar counsel, right to was told of his that he whereupon relevant, anticipated my were dissent pre- sign he refused to ing opinion in Jackson v. United statement, saying pared “he’d written 136, 105, U.S.App.D.C. 100, 337 F.2d lawyer.” Mir- sooner talk to a Under 141, 935, denied, cert. 85 S.Ct. 380 U.S. 436, Arizona, anda v. State 384 U.S. 944, For reason L.Ed.2d this 694, two 86 S.Ct. 16 L.Ed. these also, as well as for elaborated reasons compelled confessions are tions, self-incrimina- my dissent LaShine v. of the Fifth obtained violation free, supra, I think I am notwith inadmissible, Mir- unless Amendment and Jersey, standing Johnson of New v. State apply anda does not because case this say applied that Miranda should be prior tried John- to that decision. In pending this federal case Jersey, son v. State of New 384 U.S. appeal this direct when Miranda was de 882 decided one L.Ed.2d cided. Miranda, week after Court held me, moreover, It seems to that the de- principles given of Miranda need be perhaps tailed the initial confession'—and only prospective effect; but the Court “ grabbed though woman,” one [I] added: position view of the court’s need not I recognize We that certain state courts decide that —is inadmissible under Unit- perceived implications have Wade, of Es- ed States v. 388 U.S. 87 S.Ct. Illinois, brings cobedo 478, [v. State 378 U.S. Wade 18 L.Ed.2d 1149. 84 S.Ct. 12 L.Ed.2d Sixth Amendment assistance 977] anticipated and have pre-trial therefore our of counsel kind of to another holding course, confrontation, line-up Miranda. Of States identification. entirely Denno, still are free to un- effectuate In Stovall v. der their own law stricter standards 18 L.Ed.2d decided the same

than day, however, those ruling we laid down and to this constitutional apply those in a standards broader held was fore, not to be retroactive. There- range of required by problem line-up cases than is were a identifi- decision. present case, cation involved the Wade govern would not it. But we are not con- atU.S. 86 S.Ct. at 1781. cerned with such an identification. We Miranda and Escobedo were state cas- are concerned with confessions obtained es, and the decision of during the not to in-custody Court interrogation, after require application pre- their Escobedo, twenty-one to cases year from a old viously by tried was having very education, influenced consider- man abbreviated affecting ations the I.Q. making administration of unacceptable him for mili- justice slight tary criminal in the service, prior and no criminal record pertinence jurisdiction. in this experience police. LaShine or During with the U.S.App.D.C. 71, interrogation “strong the he was under (dissenting opinion). suspicion” officer’s words—of hav- —the Johnson, supra, ing See at U.S. committed a terrible crime. He was pointed S.Ct. at where the counsel, judge jury. Court without or He had out, Miranda, “Prior to fully Escobedo and confessed when he was advised of few States were under right altogether enforced com- counsel, to ineffec- pulsion grant tively on account local law to in the circumstances. The case requests against for the assistance complet- counsel him in all essentials suppressed pre-trial 1. After this refusal officers were able This was at affirming hearing appellant’s to obtain suppress a written statement motion to appellant’s Mallory the truth of oral confession. for violation of the rule. right security much of that is as by pre-trial obtained confessions ed right it is of to counsel as public aim of trial police The station. at guarantees following of the Sixth plea the other occurred, his later right of accused Amendment—the a for- guilty, more than little by public speedy an im to a trial Peculiarly fol- mality. applicable is the right jury, partial his to be informed lowing opinion in Wade: from the of the nature and cause of the accusa machinery [T]oday’s enforcement law tion, right his to confronted of the confrontations critical involves against him and to with the witnesses pretrial prosecution at accused obtaining compulsory process for have might proceedings the results where presence in his favor. The witnesses well settle the accused’sfate reduce confrontations, counsel at such critical formality. to mere the trial itself itself, operates as at trial to assure proceeded: The Court pro that the accused’sinterests will be recognition In of these realities consistently adversary tected theory with our prosecution, our cases criminal modern prosecution. of criminal Cf. Amendment construed the have Sixth Texas, Pointer v. State of U.S. stages guarantee apply to “critical” 85 S.Ct. 13 L.Ed.2d 923. guarantee proceedings. sum, principle of Powell prosecutions, criminal “In all reads: succeeding requires Alabama cases ** right enjoy accused shall any pretrial scrutinize we con- of Counsel Assistance frontation of the accused to determine wording plain his defence.” presence whether the necessary of his counsel is guarantee encompasses coun- thus preserve the defendant’s necessary sel’s assistance whenever right basic to a fair trial as affected meaningful assure “defence.” right meaningfully his to cross- 224-225, 87 supra, at Wade, against examine witnesses him opin (Italics in Court’s at 1931. and to have effective assistance of ion.) up- counsel at trial itself. It calls in-custody analyze potential us to whether secret obvious prejudice substantial interrogation, book defendant’s the address aided rights particular denied inheres in upon after he con- pressed the accused ability frontation and crime,2 critical of counsel complicity help fact, prejudice. was, avoid that stage proceedings. It assuming stage. Even the decisive Wade, supra, 226-227, at 1932 Miranda, applica inapplicability of omitted). (footnotes precluded. bility not therefore Wade is Sixth Wade The extension upon Amend Fifth Miranda rests pre-trial counsel to Amendment identification, upon a more privilege. rests ment Wade qualifications not long principle, “established inclusive application material, a new here was Alabama,” ago as Powell v. State Appeals though right, one Court and, L.Ed. 53 S.Ct. ruling. recently same had made the (5th principle central to that It is Wade trial,4 new, Cir.). principle presence at But the was to counsel’s addition quota- guaranteed he need the above is demonstrated accused is as opinion. against Non- from the Court’s alone the State tions not stand retroactivity stage newness any prosecution, formal based on the of the was out, principle, application informal, or where court might derogate the constitutional enunciation of new absence counsells right principle. The non-retroac- trial.5 to fair basis accused’s * * * anything know that he didn’t mark was didn’t know stated he “He talking a red address were about.” him what we it. showed about We ”; again, book, “His first re- asked — therefore, ruling, I does not exist F.2d 42. tive Mallory, think it se- was inadmissible under confessions obtained our case of in-custody interrogation to of an ac- reasons now be stated. cret This critical cused without counsel. dispute There is no that when first stage proceedings criminal re- questioned about crime the officers quires assistance under Wade the regarded suspect. Fuller as in- counsel, guaranteed by the Sixth vestigation upon focused him. At had Amendment, protect to fairness pre-trial hearing on the motion to trial, not, Miranda, protect as in suppress, Boyd, led in who Officer privilege alone the of the Fifth Amend- questioning, you asked, was “But had a ment, nor, Escobedo, as in shorn of its good defendant, it idea was didn’t “ implications, * * * enable the accused to you responded, ?” He we had requested. have access his counsel as strong suspicion his since address book Jersey Johnson v. Should State New was found on the it scene that preclude application nevertheless him, yes, dispute, sir.”3 There is no this Wade to “confession” case tried be- also, questioned that when first the sus- subsequent fore Miranda but to Powell pect you complicity. “Now, denied when v. State of Escobedo? Alabama and room, impli- walked in that he denied principle view of the “fair trial” in rela- he, cation, you didn’t at first when first exposited tion to the to counsel Boyd] talked to him? A. [Officer His Wade, pertinence prin- and the of that respect remark to that was he ciple distinguish- to “confession” cases as talking didn’t what know we were about.” pre-trial identification, ed from those of Boyd’s testimony In Officer before the entirely do we not have here an fresh appears: question retroactivity, not decided We all walked over to a table and took Jersey? Johnson v. State New What- seats. Detective Alexander sat across questions, ever the answer to these Wade the table from me Fuller and sat on my that, fortifies me in view within the the end of the table. latitude allowed Johnson v. State of Q. you say And Jersey, New what did ap- Miranda itself should be plied jurisdiction Defendant in this Fuller? federal to this See, case. again, my dissents in Jackson A. We told him that we wanted to LaShine, supra. both talk to being him about a woman slain in the District. I would also reverse remand for a Mallory new trial on the basis of He anything stated he didn’t know about it. We showed a red him ad- 1 L.Ed.2d for the admission book, dress asked— confession, error, of the detailed if is re- questioning After further the officer versible error. Not intro- testified yes, Fuller stated “that he was duced jury, before led search grabbed man who —that he had consequent damaging seizure of evi- woman on the street.” The officer con- dence used at trial. And even ini- tinued : grabbed confession, tial “[I] woman street,” going on the under Mal- I then was admissible told him he lory prior arrest, charged held made it is reversi- crime, error, anything conceded, ble I understand is that he told us against him; have admitted the would be detailed confession if used asked him Cunningham it if were he wanted to inadmissible. See tell us about the crime States, U.S.App.D.C. 262, v. United in detail. He 119 started at that time and through 787; States, step by step, 340 F.2d it Watson went v. United response significance probable enough It is of no that cause to arrest de- by immediately question following to an fendant. the court he time said he did not at

1219 they pains testimony 20 min- Their were to shows from 15 took conversation anof arrest before to stress the absence utes. They stressed initial confession. the appellant twenty was later hours Some interrupted they after accused the magistrate. before taken confession, charged him, and this initial by Mallory hold puts aside court no conduct him. This course of warned begun— ing the confession once the offi- due to the desire of doubt was street” the grabbed on the woman “[I] they emphasize to that when cers required inter not police were —the Mallory accused, question began the 5(a),4 cit comply rupt Rule it and apply no had made did not because States, ing Walton be- the short arrest. While time was 991, denied, U.S. Cir.), (10th cert. fur- the formal arrest5 and the tween 612, 706, 13 L.Ed.2d 85 S.Ct. questioning de- the ther which elicited Mitchell, 322 v. United turn cites States confession, tailed brought the confession 1140; 896, L.Ed. notwithstanding Mallory, within Perry our cases v. “unnecessary argument there the delay” cert. de U.S.App.D.C. 253 F.2d Mallory arrest, after is evad- the 2 L.Ed. nied, 356 U.S. 78 S.Ct. consistently cannot, prosecution ed. States, 116 2d and Gardiner United by Mallory, se- obtain a confession cert. U.S.App.D.C. F.2d 275, interrogation in-custody prior to ar- cret 495, 11 denied, rest, immediately suspect, the then arrest ap it does In Walton L.Ed.2d 421. interrogation, the elicit resume secret pear the first occurred. arrest when detailed then another and more confes- by Moreover, a denial there was never sion, “unnecessary delay” the no use complicity. Walton 5(a) of Rule to render this later feature presents the of the above cases None theory confession admissible may problem be char- have here. All we making continuity in the of the confes- cases. confession” acterized as “threshold continuity theory sions. If to be rely upon distinguishing them I In period upon, relied then the whole great- Mallory principle rule has that the questioning, including ar- that before holding efficacy er than a bare rest, passing must be considered. magis- must be taken before a arrestee upon admissibility of self-incriminat- delay. unnecessary In ad- without trate by ing police statements secret obtained ministering the are re- rule the courts except interrogation, for- when for the being quired protect from rendered it occurs, unaccepta- malities the trial its defeat evasions which ineffective Mallory depart- ble to consider me purpose. Spriggs United mentalizing period F.2d 283. secret in- terrogation, breaking an arrest the initial confession was made When purpose calculating “unneces- continuity of the confessions was sary delay” arrest, after the but not carefully them- broken the officers breaking determining it at all that the by changing the sus- selves status confession If the con- pect continuous.6 to that of an arrested accused. analysis deciding 6. As be seen from court I assume without bearing upon 5(a) the facts properly the confessions Rule Rule assimilates admissibility question applying. the ultimate of their the latter here upon principles draws enunciated Mallory, Escobedo, opinion Miranda and Wade. states 5. The court necessary determining were should not be detectives District of Columbia necessary admissibility sepa- Maryland issue consider it was aware rately application Maryland police of each of these to make call on phases separate yet opinion accepts arrest; cases to of a continu- arrest, totality of ous course of conduct. The made the the detectives view impact appellant “grabbed their should the basis deci- wom- when said he Supreme sion. It seems to me that an.” rules, society, permit uninter- such fair to do not to be considered as is fession rupted admissibility- the in of the admission evidence trial the of its then issue period detailed oral confession in this case. inter- must the take account began.7 The court clothes that confession with ad- rogation before confession missibility theory within rules on a continuity the Moreover, I find the by brought that self-incrimination about ory applied with this inconsistent here in-custody interrogation by police secret Naples recent decision in court’s suspect of a after his arrest avoid tates, S misunderstanding possibly confusion and police F.2d 465. It is clear that the something attributable to of an incrim- probable ad abundant cause when inating previously nature elicited from mittedly appellant arrested and as stated urge I arrestee. that a desire Naples, F.2d at in by clarification is criterion police It in- is the function of the judge admissibility subsequent at a vestigate crime, to there arrest when by trial of a confession such in- obtained put probable so, is cause to and to do terrogation of an arrestee without coun- prisoner leading in the channels sel or effective waiver prosecution. to his It imposing counsel. structure of deci- police function And convict. Mallory, Escobedo, Miranda, sions— purpose 5(a) of Rule to draw remotely suggest Wade—does not a line between these functions. acceptability which, of such a criterion indeed, would undermine the rules deline- Nevertheless, the in officers this case re- Naples ated emphasizes those decisions. While asking interrogation, newed the the ar- importance the relative “if restee he wanted tell us about purpose, compared with the time involved delay crime in detail.” The created interrogation, in purpose an innocent thereby unnecessary was in the full fac- —clarification—cannot render admissi- setting interrogation, tual of this ble a confession which factors other than I delay read the record the was for the ’ purpose would render inadmissible. purpose insuring of further a conviction. emphasized As Naples, in 382 F.2d at places upon police The court purpose interrogation, “the of the proving burden the innocence long short, whether it be or can never purpose. Yet the the confes- court holds anything but critical. purpose That properly al- sion though admitted at this trial * * * the measuring crucial fact judges neither of the two who delay reasonableness of presentment admissibility passed upon its followed the after arrest.” proof standard of now first announced. quantum judge The court states that the “maximum One considered protection” “unnecessary delay” protec- furnished our time involved absolutely rigid tive rules is not so as to and the concern of other was society interfere with the fair needs of Fuller had whether been arrested when police brought police I administration. think he But station.9 questioned Court lias concluded these I think cases con- he to obtain together sidered that when an accused confession. plead decides to stand trial rather than purpose in this case officers guilty he is not to be convicted on the appears from such as the renewal facts previous non-public basis of a trial interrogation arrest, after the at- police, counsel, judge jury. without sign tempt appellant to have a written injustice 7. is to the defectives for confession, his version of detailed oral say accept me is unrealistic to so, and, upon Fuller’s do refusal being ques- appellant view affirming securing a written statement merely tioned them was “asked to ex- of the oral confession. truth plain away casting suspicion items when not, sug My premise uttered words that involved him as the court gests, with the deceased and to his led arrest.” that Fuller taken to the sta sitting ROBINSON, Judges, Circuit en *****«(cid:127) banc. Escobedo, itself, years Mallory before to Wade, opposes, seems and Miranda approach court: Judge: of the me, present LEVENTHAL, Circuit course, may, person Appellant prosecuted The arrested on a Fuller.was is not police. But he charged three “booked” count Count I indictment. headquarters in police degree felony-murder, to to be taken first II Count inquiry carry process of charged out premeditated order to mur- itself, de- if not so even der, charged lends rape. All and Count III eliciting damaging state- signed, to crime. counts from the same arose ulti- support the arrest .and ments At his convicted of first trial guilt. mately his I, manslaugh- murder Count of ter included offense on Count police lesser every resort case where rape. appeal II, and of nu- person His raised interrogation arrested of an rights confession, they merous contentions that well his and secure by police sincerely, violated before quite conduct claim, and and A merely trying after arrest. division check on infor- were against Against court him, those given by resolved contentions such a him. mation upheld rape.1 his potentialities conviction of and the evil claim urges Appellant urged that those practice it is stands issues were incorrectly by decided division. 5(a) as a barrier. Rule contentions, considering appellant’s After 455-456, 1359- S.Ct. at eg., the court banc has not to decided 1360. grant rehearing issues. those On the confessions whether or not As to questions, therefore, opinion those say voluntary un- suffice it were panel issued November were not Miranda the confessions der stands. They voluntary. compelled self-in- were argued appeal counsel also On the holding of our court criminations. The must be homicide convictions require their that Miranda does ex- charge judge’s trial reversed because involuntary non- clusion as because judge trial sub- erroneous. ruling in retroactive Johnson v. State jury: counts homicide mitted two Jersey, not mean the con- New does felony- charging first I Count voluntary. fessions were II, charging murder; Count seizure, As search and degree murder, trial as reduced the. upon search warrant rests the detailed degree premedi- judge the first from my confession. Were that confession in charged indictment. murder tated opinion agree, admissible I would for the contend that Appellant’s counsel reasons set forth in Part IV of court’s instructing jury to judge erred opinion, that the admission in evidence count, on each render verdict of the articles seized did not constitute failing these them that were to instruct plain affecting rights.' error substantial counts, and that a verdict alternative respectfully I dissent. prohibited I verdict on Count That guilty on II and vice versa.2 Count Rehearing On En Banc authority of on the contention is based U.S.App. BAZELON, Judge, Naples Before Chief FAHY, (1964) Judge, 123, 131, Senior Circuit and DAN- D.C. AHER; BURGER, WRIGHT, (Naples II), Mc- a division where GOWAN, TAMM, dissenting, held, one LEVENTHAL and court against conclude, See, ante, p. tion his will. I do how 1. 1204. there, that he was taken as in fact ever. See, charge quoted e.g., in note below eventuated, to obtain confession. prejudicial spell charge refuse in- precise error to to did not out the jury find the could not trial required give struct that to when guilty submitting of both first and degree defendant second both first and second degree jury. implica- murder. murder to the The clear Naples II, however, tion of is that Although appellant’s trial counsel judge’s jury charged must be to find the defend- objection made trial guilty degree ant not of second murder argued given, charge it is as guilty degree is found of first mur- charge giving “preju- defined as Thus, majority der. dispute did not (in Naples II) “plain error” is also dicial accuracy reading of this in- of its appeal. error” that must be on reversed by dissenting judge. tention over, More- day On the same that the is- division understanding the con- rejecting opinion appellant’s sued its requires viction acquittal on one count claims, other en the court banc set on explicitly has other set forth en determination banc consideration and responsible by in a pro- effort to the bar question whether “the trial court sole guide vide a of standardized instruc- failing committed in to reversible error Taking tions.7 intention of instruct could con- not Naples the aspect II, court in we overrule this I, charging vict on both Count first de- opinion of that for the reasons gree felony-murder, II, on and Count set forth in opinion Part I of this en charging degree (as second re- murder banc. In point Part II we out that de- charge duced the trial court from a would, fendant timely request, premeditated murder).” been entitled to an instruction different Naples II, the court -held that the given by from judge, the trial first and murder second statutes also different contemplated from that together single read made clear “that a Naples II. offense cannot be degree first both and second And, murder.” “since the I appellant guilty counts,” found on both charge to Naples refusal in the alternative 1. premised II theory on a prejudicial held error. The division that first and second murder are capital cases, particularly 3. In endanger court is act passage with intent likely “plain any find error” when the car, thereby locomotive or enough error is substantial constitute guilty another, occasions the death of prejudicial See, g., degree. error. e. Tatum v. of murder in the first U.S.App.D.C. 380, 22-2403. Whoever with afore- malice F.2d 612 U.S.App.D.C. thought, except provided cases cited at 88 in sections 22-2401, n. 22-2402, 190 F.2d 614 another, guilty kills n. 3. degree. murder in Whoever, being 4. 22-2401. sound mem- U.S.App.D.C. 5. at at 344 F.2d ory discretion, purpose- kills another 517. ly, premeditated either of deliberate and 6. 120 344 F.2d at poison, per- malice or means or in petrating attempting perpetrate any or punishable by imprisonment offense #87, Jury See Instruction In- Criminal penitentiary, purpose or without prepared so structions Bar Junior perpetrating do kills another or in at- Section of the District of Bar Columbia tempting any perpetrate arson, (1906) as de- may Association : “You find 22-402, rape, fined in section 22-401 or guilty the defendant of both murder mayhem, robbery, kidnapping, or or in the and murder in the second perpetrate perpetrating attempting degree. or you guilty If find the defendant any housebreaking while armed with or degree, you of murder in the first must using dangerous weapon, guilty guilty find him not of murder in sec- degree. degree. you murder the first ond If find the defendant maliciously places guilty 22-2402. Whoever you of murder in degree, the second upon guilty obstruction railroad or street must find him not murder railroad, injures displaces anything degree.” or or the first appertaining thereto, does other person goods from another be “received” We offenses. inconsistent distinct A thief cannot considering stolen. after are under start therefore inconsistency This from con- receive himself. circumstances what arising precluded to both verdicts out offenses distinct of two vict offenses,9 and bar was maintained situation. factual of the same essentially these same offenses when generally doctrine Sound statutorily defined.10 have been legally dis permits jury of convictions inconsistency example of is Another jury offenses, precludes ver but tinct knowledge, 22 carnal made criminal guilty of finding two a defendant dict d 2801, taking indecent an D.C.Code § each inconsistent with that are offenses child, made criminal liberties with a such matter of law.8 Where other aas inconsistency the Miller the Act.11 Here jury inconsistency the should present is express results from Miller Act’s con charged in the alternative —to be knowl exclusion12 of crimes of carnal other, one offense vict edge from the area that Miller Act— heightens charge not jury’s Such a both. parole its release with liberalized and separate understanding of the designed procedures to cover. —was legal To requisites offense. each for too, they Here may must be told that relation between whether the determine guilty not find defendant of both application particular mandates offenses guilty offenses. If he is carnal charge requires in of an alternative knowledge, he not within the Miller vestigation and common law Act.13 statutory background crimes. inconsistency appellant’s case, example 2. are we A familiar dealing lar- with homicides. offenses criminal We common law begin analysis receiving goods. ceny At our with consideration and stolen not case as could the time of the indictment. law common a defendant indicting anomaly ap- There was no lar- time for both convicted ceny same pellant receiving, premedi- element both first and an because receiving degree felony- tated murder and first crime of States, split, holding See, e.g., cases some v. 8. Milanovich United may 551, 728, defendant ceny, Reg. be convicted lar- L.Ed.2d 773 365 U.S. S.Ct. 5 81 Perkins, States, supra, (1961) ; v. others that 127 Dozier v. United may offenses, (1967); U.S.App.D.C. 266, he convicted of both 382 F.2d 482 Weisberg States, App.D.O. Thompson States, U.S.App. v. United 49 v. United 97 116, (1955). Compare, 28, F. 258 others 284 still 228 F.2d 463 D.C. apparently holding that he be con- where verdicts on two counts inconsistent fact, victed of either offense but the must a matter of Dunn v. United them, States, choose between Milanovicli v. Unit- L. 76 States, supra (1932) J.); Bickel, (Holmes, ed note 8. Ed. 356 Judge Jury Verdicts —Inconsistent States, supra 10. note Milanovicli v. United Courts, the Federal Harv.L.Rev. 649 63 8. (1950). ' 11- 22 D.C.Code 3501. § E.g., Haskins, v. 128 Commonwealth (1880); Perry Martin, v. 60 73 Mass. 3501(d): provi- 12. 22 “The § D.C.Code (1906). N.J.D. A. 1001 At com- 62 apply shall not sions of this section merely pro- mon law the is not rule offenses section 22-2801.” covered hibition of conviction of both offenses. 8; States, supra note If the accused were of the theft 13. Dozier v. United U.S.App. receiving, States, could not v. be convicted Whittaker 108 United regardless (1960); Younger of whether the indictment con- 631 D.C. F.2d 281 larceny Reg. E.g., States, tained a kins, Per- count. denied, Eng.Reprints 5 Cox O.C. cert. ; (1852) Owen, (1959); Eng.Re- L.Ed.2d 582 prints Rex. v. supra Thompson States, note The difficult situa- v. United compare disposition tion is of Dozier where the “receiver” is also But accessory fact, supra, that of before the and therefore . supra principal. liable as On these facts the Milanovich v. United plainly distinct multiple murder. The offenses are does mean that con- ele- impermissible. have different quite sense that victions are This is slaying requires opinions.17 clear ments.14 One from our Insofar premedi- Naples implies contrary,18 be done “deliberate II malice,” requires disapproved. tated other killing occur in the of certain course There are sound reasons slaying enumerated The same felonies. permitting render verdicts dur- could be both: could both occur separate offenses even consecu where ing rape, course of and also be permitted. For tive sentences are product pre- killer’s deliberate situation, example, in the murder meditated act. prosecutor permitted pro should be Obviously degree 3. there is ceed on both first murder prevent injustice need to be Perhaps jury careful theories. will believe single essentially other, when what is course perhaps one and not the and may prosecuted more jury conduct be see no will believe reason both. We offense, than one under more than require statu- for a rule of law tory provision. injustice prosecutor Such is obviat- to elect between offenses by prohibiting imposition ed jury. rule before the case is sent to Nor sentences, appropriate why consecutive do we see Per must elect. cases, guilty even when the defendant has com- mitting a verdict on each count— legally two may mitted or more of- distinct if warranted serve facts — course, fenses.15 Of a defendant com- purpose avoiding useful retrials mitting single permitting homicide cannot appellate court, be or a given reflection, consecutive sentences both up trial court on further degree first murder and another crime hold a conviction where- is there error However, concerning homicide.16 fact one of the counts that does punishments may not be Moreover, cumulative not infect the other. Blockburger States, (jury 14. power v. United 284 U.S no lias life recommend . 299, 180, (1932). imprisonment). 52 S.Ct. L.Ed. 306 76 Blockburger 15. States, The former v. U.S.App. rule Unit- 17. Evans v. United 98 supra States, separate 14, 122, 123, ed note 379, F.2d D.C. citing Ekberg 232 380 punishable by States, offenses could be consecu- 167 sentences, clearly (1st 1926); Davenport tive is broad in too view 380 Cir. v. Unit subsequent Supreme decisions, States, of e.g.. U.S.App.D.C. 344, Court ed 122 F. 353 322, States, v. (1965). Prince 352 United U.S. 2d 882 403, (1957). 77 1 S.Ct. L.Ed.2d This 370 Decisions state courts likewise hold prejudicial court’s recent most formulation of the is there no error in si considerations control whether sen- multaneous convictions of two offenses rely though they may tences punished be cumulated does not even not be merely requirements evidentiary on the sentences, consecutive or are in fact proving Irby merely degrees each offense. different same of U.S.App.D.C. 17, fense, see, g., State, 129 390 F.2d e. Wildman v. 42 Ala. (en (1967) banc). App. 357, (1963) ; 432 165 So.2d 396 State v. Multiple Boodry, 259, 196, violations also raise substan- 96 Ariz. P.2d 394 379 problems 949, 44S, tial in the context of double U.S. L.Ed.2d 546 13 i.e., acquittal jeopardy, (1964); People McFarland, when on convic- Cal.2d 58 prosecution 748, Cal.Rptr. 473, tion of one offense bar will 26 P.2d 449 376 part (1962); Riley, another “offense” that State v. N.J. 28 145 (1958) ; same Quintana, transaction. See 26 note A.2d 601 State v. infra. (1961); People N.M. 364 P.2d 120 punishment degree 16. The for first murder Jackson, ex rel. Maurer v. 2 N.Y.2d imprisonment. must either death or life (1957); 159 N.Y.S.2d N.E.2d 282 22 D.C.Code § 2404. Prior to 1962 Ashe, Commonwealth ex rel. Shaddock v. amendment, 22, 1962, Act of March Pa. 17 A.2d Stat. the death was manda- sentence tory. Johnson v. United 344 F.2d at (1912) 56 L.Ed. range precludes degree course of double and second murder.” That sec jeopardy tion contentions.19 contains the definition of second degree murder: “Whoever with malice why the general reason is no There aforethought, except provided in sec render permitted to not be should 22-2401, 22-2402, tions kills another long theory, as the so on each a verdict degree.” of murder in the second aspect conflict offenses are division, relying “except” on the gives indication reasonable of the case clause held that' crime were within led might confused (which D.C.Code 22-2401 or 22-2402 § § astray. degree murder) sections define first principles general 4. With these necessarily must therefore be out background, to the situation we come degree side of definition second appellant’s trial when developed in (§ 22-2403). first II from Count reduced We think that construction unsound. second murder premeditated by logic. compelled It con brings us to This murder. history trary purpose of the the offenses relationship between defining statutory crimes provisions felony-murder and second first degree murder. degree murder. substantially in their These were enacted on Naples focused the division present II dif The use of form in 1901.20 making 2403, that statutory clear as degrees 22 D.C.Code ferent crime § single first both against background be “a cannot offense was made reg jury required Suppose ever, were as the crimes are “inconsistent” murder, acquittal premeditated Naples an ister in and in the stated dissent, reiterated they first unlikely defendant of convicted because it that this device Suppose felony-murder. degree fel jeopardy problem avoid the double ony-murder reversed is later conviction the Downum in of the overtones of view felony. ap- as to the Moreover, evidence for insufficient and Green decisions. argue could not proach that he Defendant would would not enable of the dissent premeditated murder be protection gain for be retried defendant jury that jeopardy clause, convened to consider cause available under double entitled, charge, was decision, by obtaining he to whose verdict ver- a court’s acquittal. brought Cf. judg- jury making in a verdict from a a rational dict States, 184, degree 78 applying 355 Green United ment the law of second (1957); 221, Dow produced 2 199 L.Ed.2d S. Ct. murder to the evidence at States, great possibly S. trial, possibly 372 U.S. 83 expense, numv. United (1963). exculpatory 10 L.Ed.2d 100 Ct. will from witnesses who point again. (See problems if, are raised as never be available Similar degree below, particularly paragraph contends, and con- first and second dissent offenses, taining 44-46.) and different footnotes murder are distinct Naples charge, sw- II see note 799, 800, Ch. 31 Stat. §§ given. pra, A defendant con- has been (1901). degree The first statute degree felony-murder, and of first victed 12, 1940, amended Act of June acquitted automatically of sec- therefore non-purposeful kill Stat. to make a might degree murder, appeal on ond ing in the course of certain felonies first support grounds will not that the evidence felony- degree to that the murder. Prior conviction, e.g., felony that he was purposeful only to murder rule extended specific intent intoxicated to too have felony. killings in See the course of appellate prevailed If he rob. App.D.C. 309, Jordon United court, could, that on retrial contend (1936); Marcus v. 87 F.2d 64 States, acquittal of second de- verdict App.D.C. 298, F.2d 854 gree second trial for murder bars (1936); Attorney General Cum Letter crime, though does even intoxication mings, 30, 1938, to Senate printed December required negative not the “malice” Judiciary, on the as Committee that crime. appendix to Coleman v. United suggests dissent can The U.S.App.D.C. 210, 220-221, 111 555, be told to withhold decision “abstain” (1961) (en banc), 565-566 cert. de degree it the second count if convicts nied, L.Ed. felony If, charge. on the murder liow- 2d 613 common law crime of murder21 which persons result definition that any killing committing embraced with malice aforet such are heinous murders hought.22 Congress, modifying guilty degree of second murder. Certainly common law rule all murders were seriously not be could assert- punishable by death, singled out certain person solely ed that a indicted for sec- types killings degree murder) (first degree ond murder would have valid meriting possibility capital defense should established that punishment. degree Second murder premeditated.25 murder was The degree defined residuum of the common second statute cannot be taken as killing murder,

law crime of defining e. i. the substantive offense of sec- aforethought. malice degree This is a common ond murder so as to exclude statutory pattern.23 therefrom all crimes that also come with- in the first murder statutes. purpose and effect of the dichotomy,24 “except” clause We conclude stat Code, say our All hom this: utory definition of the crimes of icides are murder malice under impel second murder does not statute, law; they common as at are requirement they charged punishable by the maximum of life im the alternative. Their ele substantive prisonment set forth murder ments do not conflict. A verdict degree, except partic those permits both no inference ularly heinous murders that are listed jurors fitting have stumbled punish the first are section concerning the instructions the elements capitally. able each offense to the facts as been determined “except” them. Without such clause § permit inconsistency confusion, inserted to certain or mur no there is heinous, punished severely, ders to be more did charge need for an alternative such as adoption 21. Prior the of of the District history 24. For discussion the of of the 1901, degree the law Columbia Code of crimes was common device, Keedy, History see of the operative in Pennsylvania Degrees District. Creating Statute February 27, 1801, Act 2 Murder, The of Stat. (1949); of 97 U.Pa.L.Rev. 759 Virginia Mary- 103, made the laws of and Michael, supra, Wechsler & 23 note operative parts land they District For 703-07. recommendation 2, Act capital had ceded. The of March punishment abandoned now that 448, penalties 1831, provided longer 4 for mandatory Stat. any type is no for of offenses, and murder, various but “all definitions 201.6, see Model Penal Code § descriptions of crimes” were to remain as (Tent.Draft 1959). 9, comment at 70 No. States, theretofore. See Hill v. United 22 25. Where on the of facts the de- case App.D.C. (1903). 395 guilty fendant as a matter of law must be is, therefore, 22. degree “Murder now thus de- killed, of first murder if he fined, described, by may or rather Sir Edward guilty insist that the verdict be of memory person Coke: degree ‘when a sound guilty. of first murder or Green unlawfully and discretion rea- killeth U.S.App.D.C. 45, v. United 95 218 being, sonable creature in under (1955), F.2d 856 but this rule its finds king’s peace, aforethought, justification with malice compromise in a fear of a express implied’.” Blackstone, either guilty or 4 degree murder, verdict of of second though jury Commentaries 195. For the historical § even was not unani- development crime, generally mously beyond this see of a convinced reasonable Perkins, A of Re-Examination Malice doubt defendant committed homi- Aforethought, only Yale L.J. degree 539-44 43 cide. Where murder (1934); Felony Note, a charged, Murder as First is defendant cannot be heard to Degree An higher Anachronism Re- Offense: insist on a trial a for offense if tained, (1957). any. Compare 66 Yale L.J. 428-31 United States v. Flem- ing, (fact (D.C.Ct.App.1966) A.2d 215 839 See, e.g., gener- 23. 1111; and 18 U.S.C. § completed that offense prosecution defense to ally Michael, Wechsler & A Rationale of attempt). for I, the Law of Homicide 37 Colum.L.Rev. 705 n. 16 charged Again er lesser offense Naples are II.26 envisioned obvious, fact jury, proper emphasize the tell course we guilty of found offense, that defendant greater to consider first he is not mean that does crimes both of on to consideration move punishment. subject to cumulative some lesser offense greater guilt reasonable doubt as II. guilt juryA fense.27 that finds of an is however There greater not enter offense does theory must legal of other strand concerning guilt of lesser verdict account, of doctrine be taken into great The reason this absence When offense. included offenses. lesser reargument requires gree an extra Appellant’s on murder because memorandum killing namely proof, heavily that the element on Green leans per- premeditated it was S.Ct. or n. petrated (1957), Court an enumerated where the in the course of 2 L.Ed.2d 199 Therefore, jury’s felony. sec failure whether “It immaterial wrote: degree in a refusal degree offense first is a lesser convict of murder murder ond felony or charge murder extra element. It creates a to find that in a cluded not. The vital theory thing jeopardy dis that it is a bar double either of Green, acquittal greater implied of- offense.” different tinct however, involve has dis- did or because been the issue fense permis- missed, multiple convictions permissibility without defendant’s question rendering sion, as to verdict sentences. without consecutive greater murder offense. See Downum first retrial for whether appeal States, supra ver note 19. On a successful after ground, rather where the two offenses of second latter are dict proved dou murder violates the same evidence than “sep carry penalties, jeopardy notion see Cichos v. different clause. ble offenses, 76, (writ Indiana, determined State arate and distinct” by requirements, evidentiary (1966) has cer- 17 L.Ed.2d their determining grant- guiding principle improvidently tiorari dismissed as protection. ed). jeopardy scope double King Vandercomb from The stems White, F.Supp. 514 27. United States v. Eng.Rep. Abbott, Leach & Devitt, (D.D.C.1963); E.& W. Mathes test “same evidence” where Instructions, Jury § Practice and Federal plea of whether a determined autrefois (1965). light in of at It was 15.10 159 Mayers generally acquit lie. See would opin- principle stated, that writer of this Yarbrough, Trials New Bis Vexari: & States, in ion Austin v. United Prosecutions, Harv.L. 74 and Successive a in the “Since of murder that: verdict Act, Kircheimer, (1960); 1 Rev. pre- negatives finding degree of a second meditation Jeopardy, Offense, 58 and Double the Yale L.J. 513 deliberation, Comment, (1949); Twice permitted ver- could not be in the same (1965); Jeopardy, Yale 262 in 75 L.J. in to recite that murder was cold dict Comment, Statutory Implementation of 180, (127 U.S.App.D.C. 193 n. blood.” Jeopardy Life for New Clauses: Double 129, (1967)) at Given 382 142 Guarantee, 65 Constitutional a Moribund to first de- that has been told (1956). not con We need Yale L.J. 339 degree murder, guilt as to first its cide decision to evidentiary rule, which sider whether the pass degree mur- on second that to the extent reevaluated has been it reflects a deter- der convict of that may, punishments, permits consecutive de- mination that some element of first process of in reevaluation also be lacking gree (or is misunder- murder else plea limits double of extent standing charge). States, jeopardy, v. 359 Abbate United see 196, in The Austin footnote was error L.Ed.2d 729 3 U.S. citing Naples II, implying or J.); Brennan, opinion (1959) (separate Naples II on that ba- could be defended Ewell, 86 v. U.S. States United sis, as that case not involve second did (1966); com L.Ed.2d 627 S.Ct. degree charged a of- murder as lesser pare U.S. Robison United error, acknowledging fense. may 198, 88 903, 19 (1968). S.Ct. L.Ed.2d 1040 appropriate be invoke the wisdom pur- identity of offenses J., Where Jackson, concurring in McGrath v. jeopardy issue, poses 162, 176, Kristensen, is first double (1950). degree de- L.Ed. from second distinct murder any inconsistency ute, however, requires killing is not consideration be aforethought.” offenses. It rather reflects done given between the with “malice If very “inclusion” that defines speech its connotation in common lesser offense one “included” imply as word “malice” would seem to greater. one A lesser included offense is that the actor must have an intention to necessarily by proof kill, which is established or at least a indifference reckless greater offense,28 to whether he does were harm. If this properly jury, legal only meaning should submitted then “malice” prosecution’s proof degree felony-murder fail to establish first second guilt greater charged, degree offense murder of distinct necessity fenses, multiple degree without indictment. requiring with second legal element the intentional desire to 6. The of lesser doctrine (although do harm which is irrelevant included culty diffi offenses is not without (cid:127)possibly present given case) in a any criminal area of the law. felony-murder. application Its homicides to criminal law, killings however, At common particularly degree elusive. Second felony the course of a were be murders clearly murder is lesser included of they killings cause were considered done degree purposes fense for all of first theory with “malice” on a of transferred premeditated murder.29 The confusion intent. The evil wicked state of mind considering arises when degree second whether the common law deemed “malice” lesser murder included of supplied by the intent to commit the charges fense when the indictment felony.' Judge Stephen As cautioned degree felony-murder. difficulty That charge in his famous in Rex v. felony-mur stems from the fact that the Serné.31 “The words malice afore doctrine, der 22 D.C.Code defines § thought not, are technical. You must killing as first murder commit therefore, suppose construe them or ted in the re course certain felonies can ordinary rule construed gardless the actor whether had language.” special Malice physical harm, intention to do let alone meaning, any killing, and it embraced kill.30 The not, murder stat perpetrated accidental or customary 28. This is the appellate entry definition an 29. Thus an court can order offense, although strictly included it is not of convictions as to second murder accurate when crimes are differentiated when the evidence is insufficient premeditation. the basis of the kind of intention the Austin example, proof actor must For have. 382 F.2d killing not, sense, intentional does in a establish the actor was reckless. felony-murder 30. Because rule does precise analysis is There more in the disregard the actor’s intention to do bod (4) Model Penal Code 1.07 which de- § ily harm, history it has “an had extensive an fines offense as when: included thoughtful condemnation.” 65 Colum. (a) proof is established of the (1965). See, e.g., L.Rev. 1496 First Re required or same less than all the facts port Majesty’s of His Commissioners on to establish the commission of the offense (“totally (1834) Criminal Law 29 incon charged; or gruous general principles with the of our (b) attempt of an consists so- or jurisprudence”); Stephen, History 3 J. charged licitation to commit offense England (1883) of the Criminal Law of 75 or to an commit offense otherwise includ- (“a doctrine”); monstrous Model Penal therein; ed or 201.2, (Tent. Code § comment 4 at 37 (c) charged it differs from the offense 9, 1959) (principled argument Draft No. only respect in the that a in- less serious find). gen in its defense hard is See jury injury person, or risk of to the same erally, Note, Felony Murder as a First property public interest or a lesser Degree Offense: An Anachronism Re culpability kind of suffices to establish tained, supra note 22. its commission. (1887). 31. 16 Cox C.C. 311

1229 only guilt such felony the lesser offense when least where of a course —at guilt necessarily great- dangerous establishes to life.32 felony is itself delineating er offense. But this rule on rule here need not We jury’s province affect does not District present applicability in the definition a of what is lesser included malice, al law doctrine this common offense. including cases,33 though some our imply 34, in a one dictum recent Taken an itself indictment is in effect. What doctrine still charging murder committed may jury cases is that from our clear felony might thought in of a course be degree murder be on second instructed adequate to serve as notice that defend offense” even a “lesser included might against ant defend solely though felo the indictment is charge of murder that intentional ny-murder.35 (but premeditated). an indict But ment for murder must read in the degree point second light history of the crime. Coun offense lesser included murder assigned sel retained or a man defend nega degree felony-murder is not felony-murder accused of are not misled. eases in some the fact tived They are aware that the facts of the may not charge murder second brought out, homicide are to be That facts. properly on the be demanded ap verdict of second murder is charge appropriate when on the only propriate proof if there is from which may jury consistent the case facts of ly might reasonably find that innocent both find the defendant defendant did not one of commit guilty felony-murder de second guilty of felonies but enumerated applica gree merely murder.36 This killing impulse, on intentional general rule that federal tion of the charge proof this state of charged may be offenses lesser included in murder a lesser consistently may when requested by pros cluded offense great innocent of the find the defendant Judge short, ecution or defense. guilty off included er and lesser Edgerton it, put felony-murder “in given carte is not ense.37 fully apprised dictment and our decisions blanche find defendant denied, 928, Coke, S. 32. III V 56 cert. 357 U.S. Institutes Parts & 78 (1958); 1378, (1680) hypothesized 2 caused L.Ed.2d Goodall that a death Ct. 1374 148, States, U.S.App.D.C. stray shot at a tame fowl v. United 86 arrow hunting 397, 1070, murder, fowl F.2d 17 A.L.R.2d cert. would be since tame 180 Digest illegal. Stephen, denied, L. S.Ct. 94 See also 70 (1887). (1950). Law, Ed. of the Criminal art. 223 1389 charge Serné, supra, in his in Rex v. But See, g., States, su- e. Coleman v. United Stephen thought felony be one States, pra 20; note Green United dangerous itself life. supra U.S.App.D.C. at at 218 States, Particularly Lee v. United 859; supra States, Goodall v. United App.D.C. 112 F.2d See at at 400. 180 F.2d States, also, supra Marcus v. note 861; App.D.C. v. United 37. See Sansone F.2d at 349-350, App.D.C. 440, L.Ed.2d Sabens States, (1965); States, (1913); 882 Stevenson v. United Norman v. 442 United 839, 313, 494, (1902); App.D.C. L.Ed. 980 162 16 40 20 Jackson v. 499 Sparf States, (1896); States, U.S.App.D.C. v. United 156 U.S. 313 United 114 (1895). implication). (1962) L.Ed. 343 (by 15 S.Ct. 39 F.2d 572 1.07(5): See also Model Penal Code § Hansborough States, 34. 113 U.S. v. United obligated shall not be to “The Court App.D.C. 392, 394, F.2d 647 308 jury respect charge in- the to an (1962). there is a rational cluded offense unless States, e.g., acquitting su 35. See v. United basis for a verdict the defend- Jackson pra States, convicting 33; charged note ant Kitchen United of offense U.S.App.D.C. 277, 278, him of included offense.” fense, pre- Naples II, jury of he must then the defendant what be as with only pared meet” on the issue of will second render one to verdict. That degree right request defendant has a on murder.38 however, is, presentation sort of ordered jury may consider the 7. The jury Naples far different from II. degree on murder an issue of second is not to be are alterna- told crimes degree felony-murder indictment of first acquit tives. not to be told to only if it with the finds some defect degree if murder it convicts proof felony-murder.39 toas degree. contrary, first On the it does not even consider the issue of second general chargeability of degree acquits murder unless as to prin on a lesser offenses rests included degree. first ciple mutuality, proper, a if charge may demanded either the be 8. In this case the trial prosecution charged or defense.40 see We respect to both why prosecution felony-murder reason have degree should and second mur option defendant, unavailable to der. He did instruct con being able to render question insist that degree sider the of second mur only verdict on the notwith lessor offense der determined that standing great guilty a verdict Government met its burden as offense, er and should able to realize degree to some element mur simple option technique on that request, of der objec count. No motion or filing an indictment in counts rather by appellant. two tion was made In our view prosecutor may appellant than one.41 While the cannot obtain on reversal properly ground file in two counts of first de “plain that there was error af gree murder, charge fecting pre once the rights.” substantial supported meditated murder is struck as holding Our reasons for that there is evidence, insufficient that count that, many no basis for reversal is degree murder, is reduced to second instances, permit it makes sense to entitled, motion, defendant is have on degree verdict of second murder to be struck, the entire count and to by jury entered that also ver- enters issue of as to second mur felony-murder. dict of It makes sense only der submitted aas lesser included in strong policies favoring terms offense, event reason prosecutorial joinder possible of all guilt able greater doubt of theories of the crime in one trial offense. prejudice43 absence of principle and the If the defendant judicial exercises his of sound administration that request that second murder be are pos- retrials to be avoided wherever presented only as a of- lesser included sible. supra, 38. Certainly Jackson inappropriate it would be at 313 F.2d submit count of second murder (1962). in a case where that crime could not charged as a lesser included offense. supra. 39. See note 27 Naples thereby 42. We II overrule insofar Kelly U.S.App. as it holds the mere conviction of both D.C. 370 F.2d cert. de necessarily prejudicial offenses establishes nied, L. error. Ed.2d 1355 of les doctrine originated permits joinder 8(a) ser included offenses as a rule 43. Fed.R.Crim.P. per prosecution, for the benefit wherever the offenses are “based (diminished) charge mit a when there same act or transaction.” The Model prosecution proof 1.09(1) failure in 1.07(2) of an Penal Code § § charged require joinder by imposing, element of crime in with some permit limitations, dictment. subsequent prose It was extended a bar a to request Compare accused to included of a lesser cution. Robison v. United States, 198, fense instruction. 903, 390 U.S. S.Ct. L. 88 19

1231 might jury come to the defend that consider from sense makes It also degree charge may view, the second defendant avoid point since of — ant’s emerged spots get matter troublesome that reasonably to desire may all, that first trial.46 desire for a once and decided consti as a may possibly dimension foregoing, we of the In view discharge of resist to tutional request require fair a think it guilt of has determined until striking degree count be for second indictm possible under offenses all who desires sub made a defendant like suppose case a Specifically, ent.44 solely of a lesser mission that crime as charged with appellant’s, defendant of a of offense. In the absence included degree felony-murder second rape, request, of the verdict defense such de Suppose further murder. degree murder addition second merely accused fense is degree special is findi murder akin to what rough-housing, intention had no sought ng,47 prosecution and molest, sexually the blow ever defense, acquiesced to the as is evidence The an accident. killed concerning of the homicide state mind stronger rape, and of the issue weak apart felony.48 the intent from as struck blow on the issue requirement motion of defense of If the verdict malice. with also obviates risk that a trial in felony-murder, because sua, a reversal sponte might court’s dismissal be rape con sufficiency evidence misunderstood and thereafter lead for jeopardy, trial ques another contentions of double fronts defendant appropriateness tions as subse all murder45 second charging quently second murder sec anxiety Also entails. as a lesser offense. now aware prosecution, trial ond had to evidence —which the defendant’s defendant conclusion Our possibility required motion that to make the in view be introduced Hoag 152, States, New (1968); 363 F. State v. ed 124 1040 Ed.2d Jersey, 829, 464, Special (1966). L. 2 verdicts 78 S.Ct. 281 2d 356 U.S. (1958); deep of Il law v. State common cases have Ciucci criminal Ed.2d 913 linois, 839, example Judge 571, L.Ed. 2 Palmieri’s S.Ct. roots. See U.S. 78 356 Ogull, opinion (1958); v. Unit v. Abbate States see also careful United 2d 983 (S.D.N.Y.1957), supra F.Supp. States, aff’d 149 272 note 26. ed Gernie, F. sub nom. 252 United States supra States, note United 44. Downum v. denied, (2d Cir.), 2d cert. 356 U.S. 664 Tateo, 26, States cf. 968, L.Ed.2d 1073 12 L.Ed.2d S.Ct. U.S. ap Supreme (1958). has Court supra Indiana, (1964); v. State of Cichos by strong proved im use at least their note States, plication, e.g., Kawakita v. United 163 U.S. 45. Ball v. United L.Ed. 1249 S.Ct. (1896). If de (1952). Moreover, finding 41 L.Ed. 300 S.Ct. such of jury, for the same possible can be retried fendant without the case is tried conviction, proce comparable 23(c), after reversal fense F.R.Crim.P. to one might required can retried as clear that he under United dure A therein. Jackson, elements are contained whose States v. question jeopardy (1968). double difficult 20 L.Ed.2d 138 given charge Naples II were arise if not now whether and acquitted 48. We need consider de second and the gree special finding extent the kind convicting what de of first while murder supra. verdict under murder gree murder, see note 19 requires discussion modification Carsey U.S. 46. See conventional law instruction that common App.D.C. 205, 392 F.2d 810 if the defendant had “malice” exists note, passing, of mind. Defendant that while wicked state 47. We do malice instruction Procedure contend that such a Rules Federal Criminal special prejudice provide perpetuates specifically find from an error not ings 57(b) might appearing fact, definition of serve connection with Rule felony. e.g., See, Unit Holmes v. the other authorization. presented only consistency, murder be reflect occasions jury’s our power.49 offense rests on a included But does lesser historic view that the lack of such restriction not mean that a has been defendant jury, legally prejudiced merely does and not tend confuse because the inability jury to find reasonable our terms of reference to do not that, concluding may possibility basis for either cater to the that it act irrationally disregard our case at bar or others that come to or in blatant mind, jury may has or be con- the law. been determining as to fused showing its duties what Multiple cannot convictions requisite is to establish a case for reversal to constitute cause said of first murder. truly incon the crimes are either unless Appellant’s argument, are such we under- sistent or the circumstances correctly, ultimately stand it is in to conclude cast make it reasonable jury mystique: namely, jury keep terms room unable to various may done, separate that when all or con is said can have been and one matters par gone tell never what to what constituted the would have on fused as charge jury room had the ticular offenses. Without such a show given. ing possibility there is no reasonable Prej prejudiced. that the defendant reject approach. We defendant’s We by invoking specu udice not shown might reach if we a different result jury possibility that would have lative a premise jury started from the that the by acting ir reached rationally, different verdict has unrestricted function in determin- invoking vague or ing whether its verdict reflect a should possibility irrational that somehow the guilt conclusion of or as to the lesser thing gone might differently whole have greater offense. But the law defines changed only a bit. the words been jury’s duty otherwise. It must first con- highest charged by sider the crime “might jury The fact that government indictment, in its differently” rejected and con- done it as a guilty sider whether the finding prejudicial defendant on basis for error in the charge. beyond If it Hirabayashi is satisfied prin- line This cases.50 guilty reasonable doubt that defendant is ciple fully applicable in the area of greater offense, jury’s it is the lesser included the doc- offenses where duty bring says in a verdict that so. shaped trines have been from the start Only jury if the has reasonable doubt hope so as to exclude on claims based guilt higher offense, may a of irrational inconsistent verdicts.51 jury performing duty acquit its of that appellant’s case it reasonable charge, may then turn to con- to infer that the failure to follow a lesser sideration of whether defendant is approach may included offense have con- of the lesser offense. guilt fused the the issue felony-murder. There are say occasions when We cannot that the accepts court jury’s verdict that cannot concurrent consideration of both rationality felony-murder defended in terms of and second mur- Dotterweich, 49. holding United States v. 320 U.S. that a conviction stand even (1943); though L.Ed. is error as to there some other Dunn v. United count on which currently imposed. con- sentence has been J (1932) (Holmes, 76 L.Ed. 356 can Yet one never .); States, supra really Jackson note tell what the would have done 33; compare Maybury, presence United States v. fact had not been for the (2d 1960) ; gen error, analytically 274 F.2d separate Cir. see of an however erally, Bickel, Jury Judge legal setting. its —Inconsist Courts, ent Verdicts in the Federal supra See cases cited 37. note Harv.L.Rev. 649 Hirabayashi 63 S.Ot. L.Ed. 1774

1233 violation, rape. of conviction the court of the of substan- of plain a der reflects regard of to convictions With rights.52 tial degree manslaughter, felony murder and re- question is until Unless banc, by en I now court affirmed Congress, perhaps in the considered ground additional reverse on new light of of recommendations prejudicial it error for the trial that of the Criminal on Revision Commission jury the case court to send Columbia, the District of Laws way permit such a as to convictions give less judge has no discretion trial degrees for same homicide two felony-mur- for the life sentence than death, contrary to of this the decision accordingly judgment is That der.53 Naples court v. United 120 Affirmed. 123, 131-132, 344 508, 516-517, Naples II. referred Judge, FAHY, Circuit Senior Judge and Cir- Naples BAZELON said: In the court Chief II whom join, Judge WRIGHT SKELLY cuit J. using in ref court erred think the We dissenting: jury it could not that to instruct guilty first de- appellant evidence of both admission to the find Due con- gree reverse the murder. Since I would and second the confessions my guilty appellant forth on both set for reasons found victions 1967, dissenting opinion counts, deemed must be of November the error division prejudicial. then affirmance from Machibroda, action, (1959); a technical 338 is one United States v. 52. There 1964) (dictum). (6th nature, is entitled on Al- which defendant Cir. F.2d 947 unlikely though very raise appeal, though did not that even we think pardon parole He point ad- Oourt. will in the District for murder be tlie judgment versely on the sentence ask that a concurrent affected entitled particular manslaughter, is of vacated—which we see no be sentence lesser why verdict of ac- sentence that concurrent not same reason course quittal. standing some direct that be we This course followed should left State, courts, e.g., v. see Wildman vacated. it be state Quinn, 17; People supra 61 Cal. v. note present neither the statute Under CaLRptr. P.2d 705 2d provide sentencing nor the can court Quintana, supra (1964); note v. State punishment tailored a less severe lesser convic- hold 17. Others crime, circumstances individuated even where the death appellant’s however, (without, be should vacated tion is accidental. judgment affecting the conviction or judge held there was case Riley, offense). greater su- v. State premeditated murder and evidence courts, pra how- New York The note 17. did not convict on Count II the ever, regard sentence concurrent but man murder People all, being punishment ex slaughter. not consider could 17; supra Jackson, note v. Maurer rel. appellee’s possibility re offense People Cheeks, v. 16 A.D.2d rapist crimi not an established flected aff’d, Dept. (4th 1962), N.Y.S.2d 105 passion; nality that his but transient rejection N.E.2d N.Y.2d N.Y.S.2d lady earlier eve friend’s ning may produced what was aber which a as to While error on count re ration rather sponse. than a characteristic imposed is sentence has concurrent problem different from Hirabayashi reversal, grounds preceding felony presented where States, supra are there note United federal likely premeditated be the death the directing the concur cases ; warning accidental that even homi where vacated should sentence be rent degree murder de be first cides will multiple imposed convictions housebreakers from ter some robbers and theory offenses, on a or included same guns. the use conceivably pardon may parole or Code recommends The Model Penal e.g., thereby. See, Audett affected that a the fact homicide occurred (9th Cir. F.2d 837 of felonies in the course of one of list 1959); Dailey States, 259 F.2d aggravating as an be taken into account denied, subject (7th 1958), sentencing, cert. 359 U. Cir. factor by mitigating circumstances. L.Ed.2d 638 offset S. 22-2401-02, Sections go District beyond is no need to posi- the central Columbia Code define first tion permit was error to degree murder.16 Section 22-2403 verdict of both first and' second provides: go afore “Whoever malice beyond murder. give To this would thought, except provided in sec rise to jeopardy the troublesome double 22-2401, 22-2402, another, tions kills contentions referred to in court’s guilty present of opinion. murder the second de prob- Whether those gree.” (Emphasis supplied.) carry This lems day against Naples would single makes it clear that a II as dissenting offense judge construed its degree cannot be both first and ponder; second we need not problems for the States, murder. In by requiring Goodall v. United can be avoided a case such we said an instruction on both first Fuller’s jury to be submitted to the degree and second murder. under instructions which treat second de- gree as a lesser included of first offense necessary only “is when from the degree I murder. from understand Part evidence jury might as a whole the opinion II of the ap- this course is reasonably guilty find the defendant proved; the court does not reverse degree of either first or second mur for failure to it follow since counsel for der, and must decide which therefore Fuller did not request the instruction. degree had been committed.” [686 The court affirms the two convictions on U.S.App.D.C. 148, 151, 180 F.2d theory the omission of such an 397, 400, (1950), 17 A.L.R.2d 1070 instruction plain affecting is not error denied, cert. 339 U.S. substantial to be noted under empha L.Ed. 1389 52(b), Rule Fed.R.Crim.P., I matter supplied.] sis cover when question I reach of “At common were no de- law there prejudice. grees of murder. All homicide Laying aside for the moment aforethought, express malice whether question prejudice, of I consider first implied, or And was murder. all mur- error, in more detail whether there was punished by der was death.” Clark & though appear, preju- as will error and Marshall, (6th 10.09 § CRIMES commingled. dice sometimes become ed.1958). By murder de- statute Naples degrees opinion fined in II discusses various order error on the treat basis the structure criminal on more in- behavior Code, degree background our considered on the dividual basis. mur- “First opinion der” the common stands law. The also now as the criminal act deserving upon States, relies Goodall v. United most severe sanction. permit U.S.App.D.C. 148, To 180 F.2d conviction both first and Naples degree support 400. More recent second II murder for the same of- contrary could fense in Austin would be found v. United to the intent legal century the nineteenth 382 F.2d re- 27, except Judge displaced forms footnote undifferenti- Leventhal, ated common author law the Austin murder. [Footnotes opinion, support now such considers omitted.] been a mistake. In event language It will be seen from this Naples upon II must rest its own merits. rendering court did not rule that guilty verdict required Although the court if re- holds that also to render formal verdicts of not quest had been made the trial guilty degrees of other included should have instructed the it true, indictment. majority as the only could find Fuller one points out, Naples now II court was upholds homicide the court the two con- silent contrary interpre- face of the theory victions on the the crimes of opinion by tation of dissenting its degree felony first murder and second judge; but this is not degree conclusive. There manslaughter are not incon- Where both disagree. from an assault. ferent I error think I sistent. rape not following assault and occur only course not lies factually inconsistent offense by the lesser included dictated each, separate conviction return crimes also because doctrine but though reason the law felony for some other murder and second Where, might permit this. how- manslaughter in- are murder or ever, exam- one result —for there is consistent. Green inconsistency ple, a death —there 2 L.Ed.2d attributing crimes to two distinct felony pointed out murder and physical states several actions and murder are “distinct culminating single homicidal mind and While distinct different” crimes. subject may result.1 of a be the different crimes erroneously single person jury trial a cannot be convicted to me is seems deprived de- of such crimes for the same offense. of two of its historic function termining degree of of seriousness the properly points the As court out the permitted de- it to a homicide when is may incon- elements of one be so crime gravity, degree one of cide that is another, of lar- sistent with those manslaughter, the time that and at same goods, ceny receiving to stolen degree gravity, of is another upon preclude of both crimes convictions killing degree. hot di- An is unlawful the same In situation evidence. another For the such verdicts. into two visible two crimes will share certain elements mutually jury degrees in the end are the but each will have elements not shared only not there is exclusive. Otherwise other, the as an such assault uncertainty inconsistency as to but also deadly weapon and an assault with defendant committed. crime the which They intent kill. share the to element charge requires Naples require of assault but one addition not II does terms, deadly weapon the use of a alternative to be in Ingram imputes other the intent In that decision. to kill. court permitting United is not heart of the decision returned, whether disapprove 353 F.2d did we not the two to be verdicts goes in al- convictions of two such crimes one not the case or trial, required in- the lesser but terms or under non-consecutive sen- ternative doctrine, though tences. in all another situation ele- cluded offense ments of do one crime of submission include all those methods substance both jury. post of another but also additional elements. alternatives for Rape, example, for includes all elements injustice is concludes that The court assault, of an but it also addi- includes by requir- verdicts avoided two tional elements of its own. by- ing This noncumulative sentences. injustice Felony passes in- murder has been issue. held to —the of error— prejudicial clude all of of the elements character sentencing manslaughter. g., See, murder reached. e. before the occurs U.S.App. Jackson in which It attaches to manner 181, 183, Non- reached. D.C. 313 F.2d 574. How- themselves are verdicts ever, degrees a cure relationship are never sentences between cumulative 'They required differs from the for are homicide relation- error. carry ship, example, out for error in verdicts but to between assault avoid Congress, rape. premeditated considered Whether a crime is the intention leniency, prevent manslaughter policy murder two the end result although which, penalties for two crimes same —a death. In the case closely rape, however, different, factually quite related. are dif- result lay presented premedi presently of deliberate and I aside as not murder malice, question for first involved verdicts tated degree felony time first and at same Ingram States, supra. See instruction for such under instruction Impermissibility multiple sentences the verdicts are also considered in the separate related crimes does alternative on entire thg evidence. permissible multiple render greater agreed convictions up- Should offense be for the same crime. lesser; on no verdict is rendered for a agreed upon and if the lesser is no ver- Hirabayashi line of cases Nor has greater dict as ato is returned. The ren- in- application to our situation dition of one verdict does not mean vulnerability both verdicts volves its deliberations'does not guilty. it is Those cases hold simultaneously degrees. consider both unnecessary are where sentences possible error concurrent to review The court denies Fuller benefit multiple on count of a convictions each procedure, the lesser included offense count indictment the conviction when under which he could con- error, one count found be free homicide, victed of but one judgment. supporting thus Here because his counsel omitted to alert the question is either conviction whether availability. court to its The court seeks error; ques- is free of for both are justify by suggesting this several ad- tion, including carrying one of the course vantages permitting guilty in two ver- greater the sentence. dicts for the same homicide. None of sought by Fuller, these was and none accepts opinion of Part II the court’s prejudice overrides the to him which has position that had counsel asked occurred, fully more discussed in a an instruction under lesser included moment. recog- Indeed the court now offense doctrine the two verdicts submitting nizes guilty two verdicts guilty permitted. not would have been permissible might as prejudicial if distinguish The court would that situa- jury had an Naples by stating “unrestricted function tion from II that such determining in whether its verdict put an instruction does not matter should guilt reflect a conclusion jury alternatives, the jury in since when greater the lesser or offense.” Yet greater finds the offense it does truly is jury function the does not have. consider the lesser. Yet it is be- though For it is true as the court states cause the court considers the lesser as jury proper performance in the greater included in the I Part duty may of its not return a approves it verdict on verdicts of both the lesser the lesser offense it greater. unless Paradoxically, and the has failed to in Part agree greater, on the I the its court deliberations concludes that the two homi- jury all the cide considers against evidence bear- verdicts Fuller are con- ing greater on the ground sistent on the the lesser of- that the elements fenses and decides one has been are included within the elements proved to its other, yet of the agrees satisfaction. then ren- II Part the court single ders a accordingly. upon verdict appropriate request In so deliberating the judge jury rationally trial acts should have instructed performance duty only to return its under the one homicide verdict law, irrationally not very inconsistently ground that one of the duty with its suggests. as the crimes court was included within the other. Since Fuller’s case could have been sub- Considering fully more now the issue mitted in this manner it should have prejudice, concept. this is an elusive been, avoiding permitting the error in To prejudice requires decide issue guilty the two verdicts for the same a court to reach a conclusion about the homicide. effect upon proc- error the decisional Naples upon depend II does consid- jury. governing esses of a The stand- eration possible verdicts ard prejudice not whether alternative; but if it did would not “probable.” “actual” or even Where thereby bar the lesser included offense error, there especially capital in a say have result would For me there case, question is “whether was, is, first been as it the same defend possibility that [the reasonable manslaughter degree, added ex prejudiced.” United States ant was were, superfluous me be for would Wilkins, Hetenyi v. rel. my impose do own. To denied, a verdict (2d Cir.), Mancusi cert. appellate for me as an this would be Hetenyi, 383 U.S. my speculation for original.) to substitute (Emphasis L.Ed.2d jury’s be the determination. adopted what should Supreme has Court impose I of man- could as well verdicts possibility” formulation “reasonable degree. slaughter rape, no first prejudice accused to an determine unlikely Though such result would be Fahy See, g., v. State e. other contexts. evidence 85, 86-87, of a on the hands Connecticut, against Fuller, say it I 171; cannot Stoner 11 L.Ed.2d S.Ct. reasonably possible. California, State 856. But 11 L.Ed.2d n. prejudice even clearer becomes to an problem not be confined need when it remembered that trial simply do expressed. Here we idea so properly quite court instructed not know verdict would what'the per- verdict of second Naples We been followed. II necessity finding missible without jury, properly in do know guilty verdict of homicide. other structed, might the defend have found incongruity recognizes The court (1) of second ant having of Fuller for the two sentences manslaughter murder, (2) guilty only of Though same homicide. counsel made offense, (3) as a included lesser point it, relatively insignifi- guilty murder of either of two require cant matter is deemed to cor- Each of these was submitted counts. request rection while the failure to jury, jury not confined but instruction, lesser included offense rendering guilty verdict as to but might in no have resulted verdict significant that under one. degree, of first not. The court va- jury returned a verdict count the second cates the either less serious sentence. If manslaughter second de than rather sentence is to it be vacated should unlikely, gree If, is not murder. the more serious one. having jury also then concluded imposition of the two sentences rape it guilty defendant found the verdicts, evidences the error two required find him elsewhere, prejudice lies prejudice degree felony murder, in where one two verdicts guilty homi one If confined to clear. rendered, leaving un- should have been might they found have verdict cide certainty been as to which would have homicide, and rape independent of the jury rendered if the confined been manslaughter homicide to limited paraphrase to one. To Dozier v. United might degree. the homicide Or or second U.S.App.D.C. 266, thought uninten to have been have been 482, 483, although under er- might tional, reason the for which roneous all instructions decided that verdict, rendered have proved, elements of first were authorized. trial as the proper in- does not follow that under unwilling might the evi done so structions would have to recon confessions alone dence of the resting upon rather than their verdict beyond a reasonable the crime struct manslaughter and, separately, rape. requiring first de verdict doubt as respectfully murder, I dissent. gree felony

Case Details

Case Name: William H. Fuller v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Mar 3, 1969

Citation: 407 F.2d 1199

Docket Number: 19532_1

Court Abbreviation: D.C. Cir.