William C. Coleman v. United States , 334 F.2d 558 ( 1964 )

DANAHER, Circuit Judge, with whom BAZELON, Chief Judge, arid FAHY, WASHINGTON and WRIGHT, Circuit Judges,

join:

We are here concerned with two appeals from post-conviction orders. In No. 17176, the appellant on May 17, 1962 filed his notice of appeal from the District Court’s order of May 8,1962, which denied appellant’s March 29, 1962 motion to reduce his death sentence to life imprisonment. The motion was based upon Public Law 87-423, infra note 8, and Rule 35 of the Federal Rules of Criminal Procedure. In No. 17177, the appellant on June 15, 1962 filed his notice of appeal from the District Court’s order of June 8, 1962, which denied appellant’s motion to vacate the sentence of death pronounced by trial Judge Letts on June 30, 1960. This latter motion, based upon Rule 35, asserted that the sentence was “unauthorized by law.” ¹

Indicted pursuant to D.C.Code § 22-2401 (1951), the appellant on June 11, 1960 had been convicted of the murder of a police officer while appellant and his brother, Raymond S. Coleman, were perpetrating a robbery.² At that time D.C. Code § 22-2404 (1951) provided that the “punishment of murder in the first degree shall be death by electrocution” (emphasis added), and on June 30, 1960, the trial judge pronounced sentence accordingly.³ After en banc consideration of Coleman’s appeal, this court on September 8, 1961 affirmed the conviction.⁴ Appellant’s petition for a writ of certiorari was denied by the Supreme Court on March 5, 1962.⁵ Rehearing was denied on April 2, 1962.⁶ Thus the appellant’s 1960 death sentence was mandatory, final and unreviewable.⁷ A reduction of that sentence to life imprisonment might thereafter have been available only by Executive clemency except for possible relief under an intervening Act of Congress which became effective March 22, 1962, and which gives rise to questions hereinafter considered.

I

The amendatory Act, Public Law 87-423,⁸ in the main spoke prospectively in prescribing the death penalty unless a jury by unanimous vote should recommend life imprisonment. If the jury should fail to agree as to punishment, the trial judge was authorized to impose “either a sentence of death * * * or life imprisonment.” But Congress was aware that there were pending various cases ⁹ in which we had affirmed convictions of murder in the first degree wherein death sentences had already been imposed, the execution of which had been stayed pending exhaustion of appellate remedies. Separate provision was therefore made respecting such cases “tried prior to March 22, 1962” as to which relief might become available by action of the judge.¹⁰

On March 29, 1962, appellant’s counsel filed a motion to reduce the sentence to life imprisonment. Following Fed.R.Crim.P. 35 and based upon the proviso of the amendatory Act,¹¹ the motion invoked exercise of the court’s discretion “upon consideration of the circumstances in mitigation and in aggravation.” However, the motion was addressed simply to points which had already been considered and settled upon direct appeal. The motion alleged, for example, that of “prime importance” was the existence of a “reasonable doubt as to the legal correctness of defendant’s conviction of first degree murder.” In furtherance of that theme, the motion raised a question of the appropriateness of an instruction as to murder in the second degree. It was suggested as a matter of legislative history that Congress had deemed appropriate here a sentence of life imprisonment on the facts of the crime as committed.¹² Counsel so argued the motion, and the Government joined issue in the same tenor, but concluded it was making no “recommendation as to sentence in this case, but only points out that the argument made by the defense motion from the evidence does not have merit.”

The motion contained no allegation of fact and no proffer¹³ of testimony as to other “circumstances” which might have tended to mitigate the sentence. To be sure, the statute before us contained no requirement that the “circumstances” to be relied upon must be presented by the testimony of witnesses examined in open court as had been true of the Oklahoma statute before the Court in Williams v. Oklahoma.¹⁴ There, a post-conviction inquiry by the Court as to punishment was to be predicated upon the “suggestion of either party that there are circumstances which may be properly taken into view, either in aggravation or mitigation of the punishment.” ¹⁵ The Oklahoma court had held that the prisoner “waived” the benefit of the statutory proceedings by failing to request a hearing. Since the petitioner had not requested or suggested that the trial court hear evidence in mitigation of the sentence, the Supreme Court of the United States found no deprivation of right or of fundamental fairness in the failure of the trial court to pursue the presentenc-ing procedures prescribed by the Oklahoma statutes.¹⁶ It would come with poor grace, to say the least, if the post-conviction successor judge in our unique situation were to be criticized for proceeding to decide the motion to reduce sentence on the only basis upon which it was proffered to and argued before him. He ruled in accordance with our earlier opinion¹⁷ on the merits, that the points urged upon him had been settled.

But he need not have been so limited in view of the purpose of the statute as Congress clearly intended it to be applied as to sentences imposed before its effective date. The appellant’s death sentence when imposed in 1960 was “mandatory,” ¹⁸ with no opportunity for a showing of mitigating circumstances, no matter what the claims might be.

Under that 1962 proviso, however, the judge was authorized to ascertain whether or not a sentence of life imprisonment might be justified, and if so, that sentence was to carry a minimum imprisonment of twenty years. Whereas in cases charging murder in the first degree after March 22, 1962, a jury was authorized to recommend life imprisonment,¹⁹ as to the appellant’s case a “procedure” was “established whereby” the judge was “to consider the circumstances in mitigation and in aggravation.” ²⁰

We can not suppose that a judge in considering circumstances in mitigation was intended to be more narrowly restricted than the jury.²¹ We know at once that matters entirely apart from the evidence at a trial may and frequently do — and in proper cases should — affect the punishment to be accorded once the issue of guilt has been resolved, as it had been here. Rule 32(c) provides for a pre-sentence report and specifies its scope to include such information as may be required by the court and “be helpful in imposing sentence.” Rule 32(a) provides that the defendant shall be afforded “an opportunity to make a statement in his own behalf and to present any²² information in mitigation of punishment.” While the facts of the crime are not without bearing, the purpose of the proviso of the amendatory Act was directed to the possible existence of circumstances in mitigation, not of the crime, per se, but of punishment.²³

Further to implement the procedure established by the proviso and in aid of the congressional purpose, it is clear the judge was not circumscribed in the inquiry he was intended to make. By the same token previously discussed, he was free to consider circumstances in aggravation. The task of the judge

“is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant — if not essential — to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial.” ²⁴

To recapitulate, Congress by the pertinent portion of Public Law 87-423 intended to create a mechanism here applicable to a previously convicted murderer by which the judge might determine whether the case “justifies a sentence of life imprisonment.”²⁵ Congress unlike various state legislatures did not adopt a “two-trial” statute.²⁶ Bather, Congress chose to rely upon the experience, training and expertise of the judge who was to make the appropriate determination “in his sole discretion”— that is, sitting without a. jury. The legislative procedure clearly was to be pursued in light of the congressional intent, and due process considerations required an appropriate inquiry as to all factors bearing upon the “fateful choice of sentences.”²⁷ Since such a hearing; was not held, we deem the error material. Under Buie 52(b) we must reverse-on this ground²⁸ despite the deficiency,, indeed the absence, of factual allegation in the motion for reduction of sentence as presented in the District Court.

II

Trial Judge Letts who had pronounced sentence in 1960, retired on June 1, 1961 at the age of 86. Thereafter, except for previously assigned matters involving his sitting as a “special judge,” he undertook no new assignments. Appellant has here for the first time contended that no judge other than trial Judge Letts was competent to hear and act upon his motion to reduce sentence, filed in March, 1962. Neither in that motion for reduction of sentence nor in his later motion to vacate sentence ²⁹ was there a challenge by the appellant to the authority of Judge McGarraghy to consider the post-conviction motions. Only in his reply to the Government’s answer to the motion to reduce-was there a reference to that point. There he argued that even if the motion to reduce sentence were being considered by the judge who had presided at trial, it would be “questionable” for the judge to consider the “facts” as set up in the Government’s answer. It was asserted that Judge Letts “did not sit as a trier of fact.” Accordingly appellant contended that where a successor judge was to hear the motion, it would seem “clearly unreasonable” were such findings to be made by a judge “who did not preside at the trial.”

Fed.R.Crim.P. 25 clearly contemplates that if by reason of absence from the District, death, sickness or other disability the judge before whom the defendant has been tried is unable to perform the duties to be performed by the court after a verdict or finding of guilt, any other judge regularly sitting in or assigned to the court may perform those duties. The record shows that Chief Judge McGuire ascertained from Judge Letts “that he was disabled from proceeding” with reference to the appellant’s motion. Thus the motion was referred to Judge McGarraghy pursuant to Rule 25 and in accordance with the District Court’s practice.³⁰

Had Judge McGarraghy’s authority so to act been challenged in the District Court, it is possible that in essential respects, the record might have been more complete. Appellant’s attack in this court not only comes too late, but we find no occasion to look behind the pronouncement in Judge McGarraghy’s opinion that he deemed himself competent to act pursuant to Rule 25. There was no suggestion to Judge McGarraghy that he not sit because not himself “satisfied that he cannot perform those duties” devolving upon him as a successor to the trial judge, either because he had not presided at the trial or “for any other reason.” ³¹

There is nothing in the amendatory Act to suggest that “the judge” who might be asked to consider a post-trial motion for relief must be the trial judge and no other. Appellant on brief here tells us that the instant record showed factors which

“amply afforded an adequate basis for granting appellant’s motion without need to resolve the conflicting testimony bearing on whether the homicide was accidental. It would accordingly have been proper for the successor judge to have granted the motion for reduction of sentence on the basis of his examination of the record; and appellant, of course, would have no standing to complain of such a decision.”

We quite agree there was no longer a “need to resolve” conflicts in the testimony. The jury had done so. We further agree that the appellant would have no basis to complain of a favorable decision. The appellant equally lacks “standing” at this point in the proceedings to challenge Judge MeGarraghy’s qualifications to render his decision, for there was no question on this record which turned upon the credibility of controverted testimony.³² The plain fact is there had been no post-trial showing by the appellant in mitigation or by the Government in aggravation which, taken together with all “circumstances,” might have had an effect upon the sentence. Appellant’s reliance upon his interpretation of the applicability of Rule 25 is totally lacking in substance. Judge Mc-Garraghy was not disqualified.

Ill

As here, the appellant’s motion to vacate the sentence of death upon constitutional grounds ³³ was extensively argued before the District Judge where counsel said: “We are not challenging the conviction in this argument.” Rather, counsel insisted that the sentence imposed by Judge Letts “went beyond that authorized by the verdict." He contended that under Fed.R.Crim.P. 35 the sentence of death was illegal and therefore should have been reduced to life imprisonment. It was submitted that the provisions of the federal statute, 18 U.S.C. § 1111(b), should have governed and should have been applied.³⁴

We do not agree, for the federal statute clearly is designed to apply within “the special maritime and territorial jurisdiction of the United States” which, in turn, is defined, as here pertinent, in 18 U.S.C. § 7(3).³⁵ The prosecution here went forward pursuant to D.C.Code § 22-2401 (1951), 54 STAT. 347.

The robbery had its inception in a liquor store wherein were located police officers who immediately commenced pursuit of the appellant across a public street in the District of Columbia. It was in the course of that pursuit that the police officer was murdered in a nearby alley, as detailed in our opinion.³⁶ The area by no tenable construction can be said to have been within “the special maritime and territorial jurisdiction of the United States.” This court had occasion to consider and reject a not dissimilar contention in Johnson v. United States ³⁷ The Supreme Court on appeal noted that the 1897 statute which conferred authority on a jury to qualify its verdict and which had been held applicable to the District of Columbia in Winston v. United States,³⁸ had been deleted from the District Code, effective January 1, 1902.

The Court held, in short, that the federal statute and the District Code were separate instruments. It was pointed ■out that the effect of the “separation is important and necessarily had its purpose.” The opinion went on to explain:

“The Codes had in the main special spheres of operation, and provisions accommodated to such spheres. There is certainly nothing anomalous in punishing the crime of murder differently in different jurisdictions. It is but the application of legislation to conditions. But if it be anomalous, very little argument can be drawn from it to solve the questions in controversy. The difference existed for a number of years between the District and other places under national jurisdiction, for, as we have seen, the qualified verdict has not existed in the District since the enactment of the District Code, and did not exist when the Criminal Code was enacted. There is certainly nothing in the mere act of enacting that code which declares an intention to give to the provision conferring power on a jury to qualify their verdict greater efficacy against the Code of the District than the same provision in the act of January 15, 1897, possessed.” ³⁹

The Court, in different context but nonetheless cogently, reemphasized the distinctive position of the District of Columbia in matters of criminal law in Griffin v. United States.⁴⁰ There the Court pointed out:

“This Court, in its decisions, and Congress, in its enactment of statutes, have often recognized the appropriateness of one rule for the District and another for other jurisdictions so far as they are subject to federal law. Thus, the ‘federal rule’ in first-degree murder cases is that, unless the jury by unanimous vote agrees that the penalty should be death, the court must fix the sentence at imprisonment for life. 35 Stat. 1151, 1152, 18 U.S.C. § 567, now 18 U.S.C. § 1111 (1948), Andres v. United States, 333 U.S. 740. But a defendant convicted of first-degree murder in the District cannot look to the jury to soften the penalty; he must be given the death sentence. 31 Stat. 1321, 43 Stat. 799, D.C.Code § 22-2404, Johnson v. United States, 225 U.S. 405. Furthermore, the Court’s decision in Fisher v. United States, 328 U.S. 463, makes clear that when we refused to reverse the Court of Appeals for the District we were not establishing any ‘federal rule’ in interpreting the murder statutes which apply in places other than the District of Columbia over which Congress has jurisdiction. In fact, this Court has been at pains to point out that ‘Congress * * * recognized the expediency of separate provisions’ pertaining to criminal justice applicable exclusively to the District of Columbia in contradistinction to the Criminal Code governing offenses amenable to federal jurisdiction elsewhere. Johnson v. United States, 225 U.S. 405, 418.” ⁴¹

The trial judge fully considered and sufficiently dealt with the contentions in such respects, as the record shows. He correctly concluded that the prosecution and the sentence had been predicated upon the provisions of the District Code. In his denial of the motion to vacate sentence there was no error.

IV

Because the amendatory Act of 1962 was unique and its applicability to this ease was a matter of first impression in the District Court, we have extensively explored its impact. We remand only that the judge may conduct an inquiry and the appellant be afforded a hearing pursuant to and as discussed in Part I,. supra.

Remanded for further proceedings-consistent with this opinion.

1 . Appellant alleged that the first degree murder sentence should have been determined pursuant to 18 TJ.S.O. § 1111(b) (1958), rather than under D.C.Code § 22-2404 (1951); and further, that imposition of the death sentence under the latter section was “constitutionally impermissible and in violation of the due process clause of the Fifth Amendment.”

2 . Appellant alone, was convicted of the “felony murder.” Both men were found guilty of the robbery. Raymond S. Coleman did not appeal; we unanimously agreed there was no error in this appellant’s conviction of the robbery charge.

3 . Judge Letts in his order of judgment provided for a stay of execution pending appeal. We then appointed Mr. Williams to represent the appellant in this court.

4 . In our opinion which appears at 111 U.S.App.D.C. 210, 295 F.2d 555 (1961), various contentions advanced by the appellant received detailed consideration. Importantly it may be noted that the minority held the view that the trial judge should have submitted an instruction on second degree murder. The majority concluded that such an instruction may be justified only when there is evidence of record which will support a finding of guilt in respect to a lesser offense.

5 . 369 U.S. 813, 82 S.Ct. 689, 7 L.Ed.2d 613; Mr. Justice Brennan and Mr. Justice Stewart were of the opinion that cer-tiorari should have been granted.

6 . Mr. Justice Douglas was then of the opinion that “a response to the petition” should have been requested (369 U.S. 842, 82 S.Ct. 870, 7 L.Ed.2d 847).

7 . Jones v. United States, 117 U.S.App.D.C. 169, 327 F.2d 867 (en banc, 1963).

8 . Approved March 22, 1962, 76 Stat. 46, D.C.Code § 22-2404 (Supp. II, 1961); so far as pertinent to our problem the amendatory Act reads:

Ҥ 22-2404. Punishment for murder in first and second degrees.

“The punishment of murder in the first degree shall be death by electrocution unless the jury by unanimous vote recommends life imprisonment; or if the jury, having determined by unanimous vote the guilt of the defendant as charged, is unable to agree as to punishment it shall inform the court and the court shall thereupon have jurisdiction to impose and shall impose either a sentence of death by electrocution or Ufe imprisonment.

“Notwithstanding any other provision of law, a person convicted of first degree murder and upon whom a sentence of life imprisonment is imposed shall he eligible for parole only after the expiration of twenty years from the date he commences to serve his sentence.

*****

“Oases tried prior to March 22, 1962, and which are before the court for the purpose of sentence or resentence shall be governed by the provisions of law in effect prior to March 22, 1962: Provided, That the judge may, in his sole discretion, consider circumstances in mitigation and in aggravation and malee a determination as to whether the case in his opinion justifies a sentence of life imprisonment, in which event he shall sentence the defendant to life imprisonment. Such a sentence of life imprisonment shall be in accordance with the provisions of this Act.” (Emphasis added.)

9 . Including the instant Coleman v. United States and Jones v. United States, 111 U.S.App.D.C. 276, 296 F.2d 398 (1961), (an en banc affirmance of the Jones conviction), cert. denied, 370 U.S. 913, 82 S.Ct. 1260, 8 L.Ed.2d 406 (1962).

10 . See Jones v. United States, supra note 7.

11 . Supra note 8.

12 . The Government’s reply in turn dealt with the crime since the issue had been so tendered. It should be noted that in some situations the circumstances of the crime may be controlling. Robinson v. United States, 324 U.S. 282, 286, 65 S.Ct. 666, 89 L.Ed. 944 (1945).

13 . Counsel orally argued in part:

“Again, Your Honor, with respect to the Defendant William Coleman, I know that a number of letters have come to the Court with respect to him from people in his home town who have known him and who have known his family. This man was reared, as you know, in a small town in Virginia in abject poverty. He had minimal schooling; but despite the fact that he had minimal schooling, he was able to secure and.hold employment for a long period of time. The record shows that he was employed by the same employer for a period of seven years prior to this offense.

“The record further shows that he has no prior criminal record, Your Honor, with the exception of a disorderly conduct charge, for which he received a ten-day jail sentence at the age of sixteen. But there is no adult criminal record.

“The record further shows, Your Hon- or, that he did serve honorably in the military for a period of a year between 1956 and 1957, and was discharged under a provision which permitted one-year discharges for members of the military with subnormal intelligence quotients.

“Now, Your Honor, what is the Government’s position with respect to this? Because I think this becomes very relevant.

“The Government does not ask Your Honor to exercise your discretion and allow the death penalty to stand. Instead, they have filed a responsive pleading in which they go to some pains to convince Your Honor that the killing of Officer Brereton was a deliberate killing.”

14 . 358 U.S. 576, 582, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959).

15 . IUd.

16 . 358 U.S. at 583, 79 S.Ct. 421.

17 . Supra note 4.

18 . Jones v. United States, supra note 7.

19 . And in doing so, the exercise of discretion “could be based upon any consideration which appealed to the jury.” Andres v. United States, 333 U.S. 740, 743, 68 S.Ct. 880, 881, 92 L.Ed. 1055 (1948), citing Winston v. United States, 172 U.S. 303, 313, 19 S.Ct. 212, 43 L.Ed. 456, (1899).

20 . Quotations here are drawn from H.R. Rep. No. 677, 87th Cong., 1st Sess. to accompany H.R. 5143.

21 . In Winston v. United States, supra note 19, 172 U.S. at 313, 19 S.Ct. at 215, the Court said: “The act does not itself prescribe, nor authorize the court to prescribe, any rule defining or circumscribing the exercise of this right; [to qualify a verdict of guilty by adding ‘without capital punishment’] but commits the whole matter of its exercise to the judgment and the consciences of the jury.” Such undoubtedly was the purpose of those who drafted the amendatory Act which authorized the opportunity for relief in the judge’s “sole discretion.” And see generally the debates in the Senate re H.R. 5143, Vol. 108, Congressional Record, 87th Cong., 2d Sess. 3977-3984, 4116-4146 (1962).

22 . The judge obviously is not bound to accept as established every such proffer, but surely he is to consider the facts which have not previously been brought to light and “any other consideration whatever” which “should be allowed weight in deciding the question whether the accused should or should not be capitally punished.” Winston v. United States, supra note 19, 172 U.S. at 313, 19 S.Ct. at 215; Jones v. United States, supra note 7. As to the prisoner’s right to allocution, see Green v. United States, infra note 23, 365 U.S. at 304, 81 S.Ct. at 655: “The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself,” citing Rule 32(a). Cf. United States v. Behrens, 375 U.S. 162, 165, 84 S.Ct. 295, 11 L.Ed.2d 224 (1963).

23 . We so used the phrase in Couch v. United States, 98 U.S.App.D.C. 292, 293, 294, 235 F.2d 519, 520, 521 (en banc 1956); Walton v. United States, 92 U.S.App.D.C. 26, 202 F.2d 18 (1953); and see Green v. United States, 365 U.S. 301, 304, and compare the expressions appearing at 307, 309, 81 S.Ct. 653, 656, 657, 5 L.Ed.2d 670 (dissenting opinion) (1961).

24 . Williams v. New York, 387 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949). There, despite the jury’s recommendation of life imprisonment, the trial judge imposed a sentence of death. Considerations actuating his conclusion are set forth at 244, 69 S.Ct. at 1081. And see discussion at pp. 249-252, 69 S.Ct. at pp. 1084-1085.

25 . “The purpose of the legislation in question is to abolish mandatory capital punishment for first degree murder in the District of Columbia.” H.R.Rep. No. 677, supra note 20, Senate debates, supra note 21. Supplementing our earlier references herein to considerations open to the judge, see Jones v. United States, supra note 7, and see note “Executive, Clemency in Capital Cases, 39 N.Y.U.L.Rev. 136, 166 (1964).

26 . See note “The Two-Trial System in Capital Cases," 39 N.Y.U.L.Rev. 50 (1964).

27 . Williams v. New York, supra note 24, 337 U.S. at 251, 69 S.Ct. 1079.

28 . Especially since life is at stake. Fisher v. United States, 328 U.S. 463, 468, 66 S.Ct. 1318, 90 L.Ed. 1382 (1946).

29 . See Part III, infra.

30 . Chief Judge McGuire filed a memorandum to that effect which was supplied for “the record.”

31 . Fed.R.Crim.P. 25.

32 . Cf. Connelly v. United States, 249 F.2d 576, 580 (8 Cir. 1957), cert. denied, 356 U.S. 921, 78 S.Ct. 700, 2 L.Ed.2d 716 (1958).

33 . See note 1 supra.

34 . 18 U.S.C. § 1111(b) (1958):

“(b) Within the special maritime and territorial jurisdiction of the United States,

“Whoever is guilty of murder in the first degree, shall suffer death unless the jury qualifies its verdict by adding thereto ‘without capital punishment’, in which event he shall be sentenced to imprisonment for life * *

35 . “Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dock yard or other needful building.”

36 . Supra note 4.

37 . 38 App.D.C. 347, 357, aff’d, 225 U.S. 405, 416, 32 S.Ct. 748, 56 L.Ed. 1142 (1912).

38 . 172 U.S. 303, 19 S.Ct. 212 (1899).

39 . Johnson v. United States, supra note 37, 225 U.S. at 417-418, 32 S.Ct. at 752.

40 . 336 U.S. 704, 69 S.Ct. 814, 93 L.Ed. 993 (1949).

41 . Id. 336 U.S. at 712-713, 69 S.Ct. at 818.