James Bailey v. United States of America, Ronald Humphries v. United States

FAHY, Senior Circuit Judge,

(concurring in part, dissenting in part) :

I concur in the decision in Part II of the opinion of the court that under the recent decision of the Supreme Court in United States v. Jackson, 390 U.S. 570 , 88 S.Ct. 1209 , 20 L.Ed.2d 138 , the death penalty provision of the District of Columbia rape statute is unconstitutional. As the court holds, the statute should be read with that provision eliminated.

The result is to place the appeals in a posture which I think requires reversal of the convictions, aside from any question raised by the other recent decisions of the Supreme Court in Witherspoon v. State of Illinois, 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 , and Bumper v. State of North Carolina, 391 U.S. 543 , 88 S.Ct. 1778 , 20 L.Ed.2d 797 . I assume arguendo that under those decisions the jury which tried these appellants must be deemed to have been impartial on the issue of their guilt and since the jury did not attach the death penalty to their verdicts prejudicial error did not arise from the composition of the jury. 1

The reversible error I find is that the court instructed the jury on three separate occasions that they could render “a verdict of guilty [of carnal knowledge] with the death penalty.” Under the intervening decision of the Supreme Court in Jackson this must now be held to have been error. 2 The impress upon the jury of these instructions was not obviated by the failure of the prosecution to request the death penalty. Notwithstanding this position of the government, the judge felt obliged to place the responsibility upon the jury; and this part of their duty was to be performed on the evidence before them, for there is no law or practice in this jurisdiction which required the parties to adduce evidence bearing specifically on the penalty, other than that received on the issue of guilt.

I suggest that it would be inconsistent with a fundamental principle of appellate review for an appellate court to assume in so vital a matter that the jury disregarded the instructions referred to.

The issue therefore is whether prejudice arises from submitting a non-capital case to the jury as a capital case, though the guilty verdict rendered did not attach the death penalty. Obviously there is prejudice in this; for

First, it exposed [defendants] to the hazards of prosecution and conviction for the more onerous offense. Second, it again gave the prosecution the advantage of offering the jury a choice —a situation which is apt to induce a doubtful jury to find the defendant guilty of the less serious offense rather than to continue the debate as to his innocence. See United States ex rel. Hetenyi v. Wilkins, 348 F.2d 844 (C.A.2d Cir. 1965), cert. denied, Mancusi v. Hetenyi, 383 U.S. 913 , 86 S.Ct. 896 , 15 L.Ed.2d 667 (1966).

Cichos v. State of Indiana, 385 U.S. 76, 81 , 87 S.Ct. 271, 274 , 17 L.Ed.2d 175 , dissenting opinion of Mr. Justice Fortas, in which the Chief Justice and Mr. Jus *1360 tice Douglas joined. The opinion in the Hetenyi case, thus referred to with approval, was written by Circuit Judge Thurgood Marshall, now Mr. Justice Marshall. Although the views above set forth appear in a dissenting opinion no opposing views appear in the majority opinion in Cichos , which disposed of the case as now explained. Based on a construction of the Indiana statutes by the highest court of the State the Supreme Court concluded that the question whether the Double Jeopardy Clause of the Fifth Amendment applied to the States under the Due Process Clause of the Fourteenth Amendment, to consider which the Court had issued its writ, was not reached. The Court accordingly dismissed the writ as having been improvidently granted.

The prejudice pointed out by Mr. Justice Fortas arose from the second prosecution of a person for a crime carrying a more serious penalty than the crime the dissenting Justices considered was the only one for which he could then be prosecuted. 3

In the Hetenyi case cited with approval by Mr. Justice Fortas, the appellant, as in our case, had erroneously been tried for a capital offense — there first degree murder — though he was by then triable for no greater offense than second degree murder — a non-capital offense. Notwithstanding the fact that the jury rendered a verdict of guilty only of second degree, for which he was properly triable, the court, pointing out that in determining whether submission to the jury of the greater offense was constitutional error the standard to be followed was “reasonable possibility of prejudice,” found prejudice and set aside the conviction of second degree. The court said in part:

[I]t is entirely possible that without the inclusion of the first degree murder charge, the jury, reflecting a not unfamiliar desire to compromise might have returned a guilty verdict on the first degree manslaughter charge on the same evidence. There is, of course, no basis for predicting with any confidence, that this would have been the outcome of the third trial if Hetenyi had not been reprosecuted for first degree murder; but neither is there any basis for predicting, with any confidence, that this would not have been the outcome. To make this latter prediction on the basis of the sufficiency of the evidence would be to ignore reality and, in effect, to have judges make the choice entrusted to the jury.

348 F.2d at 866 .

The opinion of my brethren seeks to fortify their position by quoting from Hetenyi as follows, “We are not suggesting that whenever * * * a greater charge is improperly submitted to the jury the trial is rendered constitutionally inadequate.” Ibid. We are not here concerned with the constitutional inadequacy of the instruction. In Hetenyi the Court was so concerned; for the Court of Appeals was passing upon the validity of a State conviction collaterally attacked on federal constitutional grounds. In finding prejudice of constitutional proportions in the circumstances of the case the court refrained from laying down a broad constitutional rule for all cases. This restraint does not afford support to the position of my brethren; for if in Hetenyi constitutional error of a character to avoid the *1361 conviction on collateral attack was found, reversible error more clearly appears when, as in our cases, we are called upon to consider the matter on direct appeal. My brethren of the majority resort to no reasoning to meet the rationale of the Fortas and Marshall opinions. They merely say the jury was impartial. On the issue of prejudice in the erroneous instructions after the jury has been properly impanelled, the impartiality of the jury is irrelevant.

There was a very substantial question in these cases whether defendants were guilty of the crime of carnal knowledge or only of assault with intent to commit that offense. Recognizing this the trial court quite properly submitted to the jury the issue of assault with intent to commit carnal knowledge as a lesser included offense. Had the charge respecting the death sentence not also been given the jury might have found only the lesser included offense, as the court pointed out in Hetenyi the verdict there might have been manslaughter instead of second degree murder.

As a rational matter it can hardly be denied that the instruction not only possibly but quite likely prejudiced the case of defendants. Any indecision within the jury is frequently likely to be resolved by reaching a verdict somewhere between non-guilt and guilt of the most serious possible offense. Whenever the court gives the jury the option of returning a more serious verdict than is permissible, then it improperly expands the jury’s latitude with the result that any verdict reached is likely to be more serious than if the jury’s consideration had been properly restricted. The more serious the crime the greater the likelihood of prejudice. In a case such as this where the evidence was strong that some sexual offense was either committed or attempted, the instruction that the death penalty was available to the jury would tend to influence them toward rendering a verdict of guilt of carnal knowledge but without the death penalty. Such a verdict is comparable to what Mr. Justice Fortas referred to as the less serious verdict to which the jury would resort rather than to continue the debate over whether in these cases defendants were guilty of carnal knowledge or attempt to commit that offense.

I would reverse and remand for a new trial with the statute limited now as it must be by Jackson , thus precluding an erroneous instruction authorizing the jury to render a verdict of guilty with the death penalty.

I would also reverse because of the denial of the motion for a new trial based on newly discovered evidence growing out of the testimony of the complaining witness and her mother when they later testified in a related case in the Juvenile Court. Their subsequent testimony created significant discrepancies with their testimony in these eases, especially on the question whether carnal knowledge or an attempt to commit that crime was the proper verdict on the evidence. Since the court affirms I need not go into this in more detail. For the same reason I need not discuss other phases of the case.

. I make the assumption only arguendo because the prosecutions in Witherspoon and Bumper were under statutes validly defining the offenses there on trial as capital crimes, so that inquiry of the jurors as to their attitude toward the death penalty was relevant; whereas these appeals, in light of Jackson , were erroneously considered as capital eases, so that the attitude of the jurors towards the death penalty was irrelevant.

. Counsel for appellants filed in this court a Supplemental Brief relying upon Jackson . He explicitly claimed prejudicial error in the instructions referred to. My brethren accordingly are mistaken in characterizing my reference to this matter as sua sponte.

. In Ins first trial Cichos had been tried for two related offenses, carrying different penalties, and had been convicted of the offense with the lesser penalty. This conviction was then reversed. The State then retried Cichos on both counts, again securing a conviction only on the lesser charge. Following his second conviction, the defendant appealed on the ground that he had been improperly deprived of his right to be free from double jeopardy since he had been tried a second time for the greater offense, although convicted both times only of the lesser crime. The Supreme Court of Indiana affirmed on the ground that, since the elements of the two crimes were identical, the jury’s silence on the greater charge was not an acquittal but simply an election not to impose the more severe penalty.