# John A. Naples v. United States

> Court of Appeals for the D.C. Circuit · November 9, 1964 · 344 F.2d 508

URL: https://www.frixlaw.com/law-library/cases/9450654

## Case

- **Full name:** John A. NAPLES, Appellant, v. UNITED STATES of America, Appellee
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** November 9, 1964
- **Citations:** 344 F.2d 508; 120 U.S. App. D.C. 123; 1964 U.S. App. LEXIS 3943
- **Precedential status:** Published
- **Opinion:** Dissent by Bastian
- **Judges:** Bastian, Bastían, Bazelon, Weight
- **Cited by:** 46 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled in part, on other grounds by William H. Fuller v. United States, 407 F.2d 1199 (1969).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9450654

## How later opinions describe it (automated extraction)

- holding that various items of physical evidence adequately corroborated defendant’s confession
- stating “each of the out-of-court statements must satisfy the requirements of some exception to the hearsay rule”

## Opinion text

BASTIAN, Circuit Judge
(dissenting):
I would affirm the convictions in this case, and state my views.
First, as to the testimony of Captain Harnett: I agree that adoptive admissions are admissible in evidence against a defendant. If, as the testimony outside the presence of the jury indicated, Naples said “Yes” to the question: “Is what * * * [Culpepper] said right?” then I have no doubt that the statement made by Culpepper was adopted by Naples and was admissible as part of Harnett’s testimony. On the other hand, if Naples was silent at the end of Cul-pepper’s recital, then the question turns on whether or not this silence was an effective adoption. Since the jury was not informed of the affirmative response testified to out of its hearing, I consider on this appeal only the response of silence.
Admittedly, silence in the face of an accusatory statement (in this case, a recital of Naples’ own words) may be an adoption of that statement. Whether or not silence in a given case is an adoption is a question of fact. For myself, I am satisfied from the record that had this issue been raised at trial it would not have been error to resolve it in favor of admissibility. However, as the majority points out, there was no objection on this ground and the trial judge had no occasion to consider it. Nor was any instruction relating to adoptive admissions requested or given. Though the question was neither raised in the trial court nor argued on appeal, the majority of this court, on its own initiative, not only raises the question but, without opportunity on the part of the Government to argue the point, decides .as a matter of law that Naples did not assent to (and thereby adopt) Culpep-per’s recital. In so doing, the majority relies heavily on the difference between-the testimony of Captain Harriett and that of Lieutenant Culpepper as to whether Naples or Culpepper repeated the admission. This is merely a case of one witness contradicting another and is a far cry from showing no assent. In fact, the contradiction demonstrates the reliability of the testimony; parrot-like testimony of two- witnesses is always ground for suspicion. In any event, I reject the concept that this court can on this record decide the fact of assent as a matter of law. Underlying the application of Rule 52(b) is the majority’s assumption that the trial judge, sua sponte, should have rejected Harnett’s testimony as not coming within the adoptive admissions exception to the hearsay rule. Since this is obviously a question of fact, and since there was neither objection nor a request for instruction on this point in the trial court or here, it is not a ease of “plain error affecting substantial rights.”
Assuming, as the majority does and as it must, that Captain Harnett’s testimony is correct, the “second confession” is not a confession at all and does not come within the Mallory rule.
Turning to the other points raised on this appeal and discussed by the majority, I agree that the element of intent to steal, as found in Naples’ confession, was sufficiently corroborated by independent evidence. I further agree that the evidence of insanity vel non presented a question of fact for the jury. Although the issue raised concerning the prosecutor’s comment to the jury is rendered moot by the decision of the majority to reverse, I do not think that that comment is sufficient ground for reversal. And, as this court does not give advisory opinions, I shall not express myself on the double jeopardy argument made by appellant.
*519 As far as the majority’s discussion of the insanity defense and the evidentiary points raised therein are concerned, I think I need only point out that although opinion testimony of lay witnesses who have observed a person claimed to be of unsound mind is not ordinarily excludable, adequate grounds for the exclusion did exist here. The trial judge has always had a measure of discretion in allowing cumulative evidence; and, in view of the voluminous expert testimony as to insanity, as well as the fact that lay witnesses were permitted to testify to everything but their conclusory opinions, 1 can find no prejudice to Naples arising out of this exclusion. I might add that, as I read the opinion in this case, the majority also finds no prejudice. It is worthy of note that the lay witnesses’ testimony as given and as proffered, but excluded, is of doubtful probative value. These witnesses testified to their observations of Naples years before the crime, but the issue was his sanity at the time of its commission.
The exclusion of evidence of a judicial finding of appellant’s incompetency to stand trial was not, in my opinion, error. It would seem that the majority has misplaced reliance on our en banc opinion in Lyles v. United States, 103 U.S.App.D.C. 22 , 254 F.2d 725 (1957), cert. denied, 356 U.S. 961 , 78 S.Ct. 997 , 2 L.Ed.2d 1067 (1958). True, we there held that after the defense had introduced a finding of incompetency it was proper for the prosecution to counter by introducing a subsequent finding of competency, but we did not rule that the finding of ineompetency was properly admitted in the first place. As Judge Bazelon himself noted in his dissent, 103 U.S.App.D.C. at 39, 254 F.2d at 742 : “My brethren of the majority now seem to assume that appellant had no right to introduce the * * * order [adjudicating incompetency].” Since the issues of incompetency to stand trial and of insanity at the time of the commission of the crime deal with problems which are not only unrelated in time, but which also require a different quality of proof, the former is irrelevant to the latter. Cf. Blunt v. United States, 100 U.S.App.D.C. 266 , 278, 244 F.2d 355, 367 (1957), dictum which, assuming the identity of the mental condition in issue, deals only with time as a factor of relevance.
Lastly, I seriously dispute the position of the majority that the statutory definitions of first and second degree murder are mutually exclusive and that the same homicide cannot consistently result in a verdict of guilty of more than one degree of murder. D.C.Code § 22-2401 sets out four ways in which first degree murder may be committed:
“Whoever, being of sound memory and discretion, kills another purposely, either [1] of deliberate and premeditated malice or [2] by means of poison, or [3] in perpetrating or attempting to perpetrate any offense punishable by imprisonment in the penitentiary, or [4] without purpose so to do kills another in perpetrating or in attempting to perpetrate * * any housebreaking while armed with or using a dangerous weapon, is guilty of murder in the first degree.” [Subheads added.]
Since thp indictment in this case charged first degree murder by means of method [4], i. e., felony-murder, the failure of the trial judge to charge the jury that they could find the defendant guilty on only one of the two murder counts would be error only if this portion of the statute is inconsistent with second degree murder. Section 22-2403 says that second degree murder is committed by one who “with malice aforethought, except as provided in sections 22-2401, 22-2402, kills another.” I fail to see why the exception clause in section 22-2403 “makes it clear that a single offense cannot be both first and second degree murder,” as the majority holds. One homicide can result in the imposition of only one sentence therefor but we are not dealing with multiple sentences. We are dealing with degrees of the same crime. Murder is murder but, depending on the circumstances of the crime and the theory of the Government’s case, the *520 same crime can consistently meet all the criteria of both degrees of murder, or be first degree murder under more than one of the theories and sets of proof which would be acceptable under the methods described in section 22-2401.
At the beginning of any analysis of first and second degree murder statutes, one is confronted with the various problems summed up in the doctrine of “lesser included offense.” On the one hand, we have held that second degree murder is a lesser offense necessarily included in a charge of first degree murder. Jackson v. United States, 114 U.S.App.D.C. 181 , 313 F.2d 572 (1962); Hansborough v. United States, 113 U.S.App.D.C. 392 , 308 F.2d 645 (1962); Kitchen v. United States, 92 U.S.App.D.C. 382 , 205 F.2d 720 (1953); Goodall v. United States, 86 U.S.App.D.C. 148 , 180 F.2d 397 , 17 A.L.R.2d 1070 , cert. denied, 339 U.S. 987 , 70 S.Ct. 1009 , 94 L.Ed. 1389 (1950). On the other hand, we have held it to be erroneous for a trial judge to give a second degree murder lesser included offense instruction unless the evidence adduced at trial supports such an instruction. Coleman v. United States, 111 U.S. App.D.C. 210, 295 F.2d 555 (1961), cert. denied, 369 U.S. 813 , 82 S.Ct. 689 , 7 L.Ed.2d 613 (1962); Green v. United States, 95 U.S.App.D.C. 45 , 218 F.2d 856 (1955); compare Tansimore v. United States, 115 U.S.App.D.C. 199 , 317 F.2d 899 (1962), cert. denied, 374 U.S. 839 , 83 S.Ct. 1892 , 10 L.Ed.2d 1060 (1963). In fact, in Hansborough Judge Wright, writing for a unanimous court, said:
“If the evidence precludes the legal possibility of guilt of a lesser included offense, then it would be error to submit the case to the jury on such offense. For example, in a felony murder case where the statute requires a verdict of murder in the first degree irrespective of premeditation, in the absence of special circumstances, instruction on lesser included offenses would be wrong.” 113 U.S.App.D.C. at 395; 308 F.2d at 648 .
If evidence specifically pointing to second degree murder is required for such an instruction, it must be that such evidence is, or may be, different from evidence required to support the first degree murder charge. Otherwise (i. e., if the evidence is always the same), a second degree murder instruction would in all cases be proper. I believe that this seeming conflict is the unfortunate result of imprecise language in some of the decisions. Second degree murder is not a necessarily included lesser offense. Under our statutes it may be a lesser included offense, but it is not necessarily so.
As set out above, section 22-2401 defines four types of (or methods of committing) first degree murder. Only method [1] requires a showing of actual malice. In methods [2], [3] and [4], the malice required is implied by law, 1 and the prosecution need neither plead nor prove malice. There is, however, only one kind of second degree murder, and that is a killing done with malice aforethought. Accordingly, to make out a case of second degree murder, the prosecution must plead and prove actual malice. 2 This is an element of proof not required for first degree murder by methods [2], [3] and [4] ; and, to make out a case of first degree murder by method [1], the proof of malice aforethought which would be sufficient under section 22-2403 must be raised by additional proof to that higher order of malice denominated in section 22-2401 as “deliberate and premeditated malice.” Thus, as to first degree murder by meth *521 od [1], it may properly be said that second degree murder is a necessarily included lesser offense; but, as to first degree murder by methods [2], [3] and [4], second degree murder may or may not be a lesser included offense, depending upon the theory of the case as supported by the circumstances of the homicide and the evidence adduced at trial. If only first degree murder by method [4] (felony murder) is charged, there is no second degree aspect unless and until evidence tending to show malice aforethought is introduced. Then and only then may the defendant, if he wishes, request and be entitled to receive a lesser included offense instruction on second degree murder. The only difference between this example and the instant case is that here both first and second degree murder were charged in separate counts, thereby requiring the Government to prove not only that the homicide occurred during the perpetration or attempted perpetration of the felony (in order to sustain the first degree murder count), but also to prove malice aforethought (in order to sustain the second degree murder count).
The fallacy in the position taken by the majority is simply failure to recognize that a single act may give rise to alternate theories upon which the Government may proceed and be successful if the jury believes all the proof. The fact that a homicide may involve all the elements of second degree murder would not prevent that homicide from also involving all the elements of all or any one of the four sets of criteria by which first degree murder may exist under section 22-2401. There is no contradiction here, and there can be none, because a verdict of guilty of first degree murder does not negate the existence of any fact needed to make out complete proof of second degree murder for the same crime. 3 I cannot accept the argument that Congress intended, by the wording of the statutes, that the Government must make a choice of possible theories and be bound by that choice, especially in a case such as this, where it is virtually undisputed that a crime has been committed.
Furthermore, the very terms of the statutes here involved belie the interpretation placed on them by the majority. As noted, section 22-2403 defines as second degree murder a malicious homicide which need be neither premeditated nor deliberate. 4 On the other hand, section 22-2401 defines fcur types of first degree murder, only one of which (method [1]) requires a showing of actual malice. If section 22-2403 is to be construed as making first and second degree murder mutually exclusive, then on the face of the statute it would not be a mutual exclusion as to first degree murder by methods [2], [3] or [4] (felony murder, which is involved in this case). Rather, it would be an exclusion only as to method [1], premeditated murder; but even this construction would result in confusion, a result which I cannot concede to be Congress’ intent. I believe that the “exception” clause in section 22-2403 is merely a referral to sections 22-2401 and 2402 designed to indicate that different and/or additional elements in a given homicide may raise the degree of the crime from second to first degree murder, and this raising of the degree does not wipe out the lower degree, if it can also be proved.
I believe that the foregoing is a correct statement of the law and conclusively demonstrates that the result reached by *522 the majority is erroneous. However, since the basic premise of my position is that second degree murder is not a lesser offense necessarily included in a charge of first degree murder (except as to method [1], murder with premeditated malice), I consider it now necessary to analyze the majority’s view, starting with the premise that second degree murder is a lesser offense necessarily included in all cases of first degree murder. If this premise, which I believe to be wrong, is accepted as a starting point for analysis and argument, then when a case of first degree murder is proved against an accused, all elements of second degree murder would be necessarily proved at the same time as part of the proof of first degree murder. A verdict of guilty of first degree murder would necessarily include, by implication at least, a verdict of guilty of murder in the second degree, and this result cannot properly be said to be inconsistent merely because it is expressed in a verdict of guilty of each of two counts charging first and second degree murder respectively. To the contrary, the inconsistency is under the holding of the majority for, as I understand its view, if a jury wants to return a verdict of guilty to the first degree murder count, it is required, under the instructions insisted upon by my colleagues to return a not guilty verdict on the second degree murder count. Yet the latter is, under the premise here accepted for purposes of analysis, a necessarily included lesser offense which, a fortiori, must be proved in its entirety as part of the greater crime. Is the jury to be told this and then told that, even if they believe beyond a reasonable doubt that all elements required under the first degree murder count have been proved, they must return a verdict of not guilty to second degree murder, thereby affirmatively stating that those elements of first and second degree murder which overlap and duplicate do not exist as fact? Merely stating the proposition demonstrates the illogic and confusion inherent in the majority view. Unless and until an inconsistency in the counts and the resultant verdicts can be shown, there is no prejudice, real or presumed, to an accused; in fact, absent the inconsistency, instructing the jury that the degrees of murder are mutually exclusive will only result in confusion and prejudice to the Government and the public, whose rights are also involved in every criminal trial, a matter sometimes overlooked. 5
*523 As I said, regardless of how many theories of murder are proved, only one sentence may be imposed for any one killing, but that sentence may be the maximum prescribed by law for the highest degree of murder proved and on which the verdict of guilty is returned.
I think appellant had a fair trial; his guilt was conclusively demonstrated; and the jury’s verdict was more than fair to the appellant in that the jury could have recommended the death penalty.
I see no ground for reversal.
. Wheeler v. United States, 82 U.S.App.D.C. 363 , 165 F.2d 225 (1947), cert. denied, 333 U.S. 829 , 68 S.Ct. 448 , 92 L.Ed. 1115 (1948); Goodall v. United States, 86 U.S.App.D.C. 148 , 180 F.2d 397 , cert. denied, 339 U.S. 987 , 70 S.Ct. 1009 , 94 L.Ed. 1389 (1950).
. Though malice aforethought may be inferred from circumstances such as the brutality of the killing, Evans v. United States, 122 F.2d 461 (10th Cir. 1941), cert. denied 314 U.S. 698 , 62 S.Ct. 478 , 86 L.Ed. 558 (1942), this is still actual malice.
. The converse situation is not necessarily the same, as exemplified by the Supreme Court’s holding in Green v. United States, 355 U.S. 184 , 78 S.Ct. 221 , 2 L.Ed.2d 199 (1957), that a verdict of guilty to second degree murder, standing alone, impliedly acquits the defendant of first degree murder, thereby raising a double jeopardy bar to retrial on the first degree charge. The Oreen case deals with a matter altogether different from the situation presented by Naples’ instant appeal, and is inapposite on the facts.
. Hansborough v. United States, 113 U.S.App.D.C. 392 , 308 F.2d 645 (1962); Kitchen v. United States, 92 U.S.App.D.C. 382 , 205 F.2d 720 (1953); Weakley v. United States, 91 U.S.App.D.C. 8 , 198 F.2d 940 (1952).
. My colleagues cite Screws v. United States, 325 U.S. 91 , 65 S.Ct. 1031 , 89 L.Ed. 1495 (1945), and Williams v. United States, 76 U.S.App.D.C. 299 , 131 F.2d 21 (1942), to the effect that jury confusion is no justification for avoiding complete instructions. These cases clearly affirm, and I do not dispute, the necessity for jury instructions covering all essential elements of the offense charged, including differences between similar crimes, but this is not the point. The point is that, in essence, the statutory scheme as outlined in the D.C.Code in Sections 22-2401 through 22-2404 “does not create two separate crimes but prescribes alternative sentences for the same crime depending upon the manner of its perpetration.” The quoted language is taken from Holiday v. Johnston, 313 U.S. 342, 349 , 61 S.Ct. 1015, 1017 , 85 L.Ed. 1392 (1941), and the same litigation later on in the Eighth Circuit, Holiday v. United States, 130 F.2d 988, 989 (1942). These cases deal with robbery under 18 U.S.C. .§ 2113, formerly 12 U.S.C. § 588 , but the principle and reasoning is perfectly analogous to murder under the D.O.Oode. In these cases, Holiday was charged with two counts of bank robbery, one count specifying a more aggravated means of perpetration. Holiday pleaded guilty to the indictment and was sentenced to ten years on count one and fifteen years on count two, the sentences to run consecutively. The courts held that for sentencing purposes there was but one offense charged and while vacating the ten year sentence the courts allowed the longer fifteen year sentence to stand.
The underlying assumption of the Holiday cases is that it was proper for him to plead guilty to the indictment or to both counts thereof, but that as only one offense was charged (but was charged in two different ways), only one sentence was permissible. I can see no difference in allowing guilty verdicts on various murder counts which charge different means of perpetration as long as only one sentence is given. Other cases which support this view include: Sawyer v. *523 United States, 312 F.2d 24 (8th Cir. 1963); United States v. Trumblay, 286 F.2d 918 (7th Cir. 1961); Duboice v. United States, 195 F.2d 371 (8th Cir. 1952); Gebhart v. Hunter, 184 F.2d 644 (10th Cir. 1950); Barkdoll v. United States, 147 F.2d 617 (9th Cir. 1945).
Neither consecutive nor concurrent sentences in the situation here involved constitutes reversible error. Erroneous consecutive sentences are correetible as in the Holiday cases. Erroneous concurrent sentences are likewise correetible, but are not reversible error affecting the conviction. Hirabayashi v. United States, 320 U.S. 81 , 63 S.Ct. 1375 , 87 L.Ed. 1774 (1943); Lewis v. United States, 105 U.S.App.D.C. 15 , 263 F.2d 265 (1958), cert. denied 359 U.S. 959 , 79 S.Ct. 798 , 3 L.Ed. 2d 766 (1959).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9450654. Public record. Not legal advice.