Commonwealth v. Archambault

290 A.2d 72, 448 Pa. 90, 1972 Pa. LEXIS 438

Opinions

Opinion by

Me. Justice Robeets,

Appellant Leonard Archambault, after trial by jury in 1962, was convicted of first degree murder and sentenced to life imprisonment. No appeal was taken from his conviction at that time. However, in 1968 appellant filed a petition pursuant to the Post Conviction Hearing Act,¹ alleging that he had been deprived of Ms right to appeal, guaranteed by Douglas v. California, 372 U.S. 353, 83 S. Ct. 814 (1963). His petition was dismissed by the common pleas court, but on appeal this Court ordered that appellant be permitted to file post trial motions as if timely filed if he could establish that Ms previous failure to prosecute an appeal was motivated by fear of the death penalty. Commonwealth v. Archambault, 433 Pa. 336, 250 A. 2d 811 (1969). Such a showing was made, but after argument appellant’s motion for a new trial was denied. Appellant appealed directly to tMs Court, and on March 25, 1971, this Court, by a vote of three to two, affirmed the judgment of sentence. A petition for reargument was timely filed, and was granted on May 28, 1971. The case was then reargued before a full Court.

Appellant contends that the trial court erred in telling the jury during the charge: I think it would be a miscarriage of justice to find this defendant not guilty.”² We agree with appellant and grant him a new trial.³ To the same effect see Commonwealth v. Motley, 448 Pa. 110, 289 A. 2d 724 (1972), decided this day.

We believe that when a judge expresses to the jury his opinion that the accused is guilty, he invades the province of the jury and thereby violates the accused’s fundamental right to trial by jury, a right that has been guaranteed by the Constitution of this Commonwealth since 1776.⁴

In a criminal case the direction of a verdict of guilty by a trial judge is not allowed.⁵ For an accused has a right to trial by jury, and if a trial judge directs the jury to return a verdict of guilty, the accused has had no jury trial at all. Our constitutional system of trial by jury is founded upon the firm conviction that the peace and dignity of our society are best maintained, and the highest degree of criminal justice is achieved, if the power to convict individuals of crimes lies solely with the jury.

Justice Brandéis’ observations on the question of whether a trial judge may express his opinion on the guilt of an accused, expressed over fifty years ago, still ring true today: “[I]t is still the rule . . . that the judge is without power to direct a verdict of guilty although no fact is in dispute. What the fudge is forbidden to do directly, he may not do by indirection. The judge may enlighten the understanding of the jury and thereby inflence their judgment; but he may not use undue influence. He may advise; he may persuade; but he may not command or coerce. He does coerce when without convincing the judgment he overcomes the will by the weight of his authority.” ⁶

Justice Brandéis has not been alone in his observation that a trial judge cannot indirectly effect a directed verdict of guilty. As the United States Court of Appeals for the First Circuit recently noted: “In a criminal case a court may not order the jury to return a verdict of guilty, no matter how overwhelming the evidence of guilt. This principle is so well established that its basis is not normally a matter of discussion. There is, however, a deep undercurrent of reasons. Put simply, the right to be tried by a jury of one’s peers finally exacted from the king would be meaningless if the king’s judges could call the turn. Bushel’s Case, 124 Eng. Rep. 1006 (C.P. 1670). In the exercise of its functions not only must the fury be free from direct control in its verdict, but it must be free from judicial pressure, both contemporaneous and subsequent. Commonwealth v. Anthes, 1857, 71 Mass. (5 Gray) 185, 209-10; Rex v. Larkin, [1943] K.B. 174; P. Devlin, Trial by Jury 14, 56, 75-91 (3d impr. with addendum, 1966); T. Plucknett, A Concise History of the Common Law 137-38 (5th ed. 1956); Howe, Juries as Judges of Criminal Law, 52 Harv. L. Rev. 582 (1939).”⁷

The now-apparent weakness in some of our previous decisions⁸ was the supposition that the trial judge could express his personal opinion on the guilt of the accused, and even tell the jury, as the trial court did here, that: “I think it would be a miscarriage of justice to find this defendant not guilty,”a,nd yet somehow still leave “the ultimate decision to the jury” and not “interfere with its responsibility.”⁹ This assumption fails to recognize the actualities of the judge-jury relationship.

An expression by the judge that in his opinion the accused is guilty leaves an indelible imprint on the minds of the jury. The jury is undoubtedly going to attribute to the judge, because of his experience in criminal cases, special expertise in determining guilt or innocence. As Mr. Justice (later Chief Justice) Kephart stated for this Court: “The judge occupies an exalted and dignified position; he is the one person to whom the jury, with rare exceptions, looks for guidance, and from whom the litigants expect absolute impartiality. An expression indicative of favor or condemnation is quickly reflected in the jury box. ... To depart from the clear line of duty through questions, expressions or conduct, contravenes the orderly administration of justice. It has the tendency to take from one of the parties the right to a fair and impartial trial, as guaranteed under our system of jurisprudence.”¹⁰ Or, as the United States Supreme Court recognized in Bollenbach v. United States, 326 U.S. 607, 612, 66 S. Ct. 402, 405 (1946): “ ‘The influence of the trial judge on the jury is necessarily and properly of great weight/ . . . and jurors are ever watchful of the words that fall from him. Particularly in a criminal trial, the judge’s last word is apt to be the decisive word.”¹¹

A judge’s expression of his opinion on the guilt of an accused has an even greater coercive effect on the jury when as here the judge states that it would be a “miscarriage of justice” to find the defendant not guilty. “A juror may not mind disagreeing with a judge on factual matters but he would dislike very much placing himself in the category of a person who has participated in a miscarriage of justice, judicially proclaimed.” Commonwealth v. Raymond, 412 Pa. 194, 210, 194 A. 2d 150, 158 (1963) (dissenting opinion).¹²

In light of the decisive effect that a jury is likely to give to a judge’s statement that in his opinion the accused is guilty, it is clear that cautioning instructions to the effect that the jury is the final arbiter of the verdict are insufficient to vitiate the impact of the judge’s statement. In a lengthy charge such as the one that was given to the jury at appellant’s trial, the judge’s statement that “I think it would be a miscarriage of justice to find this defendant not guilty” is the one part of the charge that no juror will forget or fail to understand. Cautionary instructions will be unable to remove the indelible impact of such a statement. Cf. Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620 (1968); Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774 (1964).

In. holding as we do today, that a trial judge may not suggest a verdict of guilty or not guilty nor directly express an opinion on the guilt or innocence of the defendant, we are merely reaching a result which is in harmony with our latest decisions in this general area— Commonwealth v. Wilmer, 434 Pa. 397, 254 A. 2d 24 (1969), and Commonwealth v. Holton, 432 Pa. 11, 247 A. 2d 228 (1968). In both of these cases the trial judge in his charge had reminded the jurors of their responsibility to the Almighty to bring in a proper verdict. We reversed on the grounds that the “ ‘jurors might have concluded . . . that the Court was threatening them with the wrath of Cod should they bring in a verdict of not guilty.’ ” Commonwealth v. Wilmer, supra, 434 Pa. at 400, 254 A. 2d at 25 (quoting from Commonwealth v. Holton, supra, 432 Pa. at 19, 247 A. 2d at 232). Certainly a direct statement by a judge tha,t in his opinion the accused is guilty invades the province of the jury just as much as, if not more than, a judge’s statement implying that he can discern the will of the Almighty and that Cod’s wrath will be visited upon the jury if they fail to return a verdict of guilty.

Our holding in this case also eliminates a number of anomalies that would exist under the opposite rule. For example, we recently held in Commonwealth v. Potter, 445 Pa. 284, 285 A. 2d 492 (1971), that a new trial was required when the prosecutor expressed his personal opinion of the defendant’s credibility in the presence of the jury. We reasoned that the prosecutor “thereby clearly and improperly intrud[ed] upon the jury’s exclusive function of evaluating the credibility of witnesses.” Id. at 287, 285 A. 2d at 493.¹³ If a prose cutor cannot express Ms personal opinion of a defendant’s credibility without intruding upon the jury’s function, a fortiori we cannot permit a judge, whose opinion on the guilt of an accused has a far greater impact on the jury, to express such an opinion on the guilt of an accused.

In addition, we have held many times that new trials would he granted where the judge in a jury case evidenced a prejudiced or biased attitude toward the defendant,¹⁴ or by his conduct acted as an advocate for the Commonwealth.¹⁵ If new trials are required in cases such as these where the judge only indirectly indicated his belief in the guilt of the accused, how can we refuse to grant a new trial where as here the judge directly and specifically expressed his personal opinion that the accused was guilty.¹⁶

Flually, oar result liere is in accord with, the view of the overwhelming majority of other jurisdictions.¹⁷

The judgment of sentence is vacated and a new trial is granted.

Mr. Justice Nix joins in the majority opinion and filed a concurring opinion. Mr. Justice Manderino joins in the majority opinion and joins in the concurring opinion of Mr. Justice Nix. Mr. Justice Eager filed a dissenting opinion.

Footnotes

1

Act of January 25, 1966, P. U. (1965) 1580, §§1 et seq., 19 P.S. §§1180-1 et seq. (Supp. 1970).

2

The trial court also told the jury in the course of the charge: “I say to you, members of the jury—and here is my comment— that I don’t think voluntary manslaughter is in this ease, and I don’t think murder in the second degree is in this case. I think it is a question of murder in the first degree or not guilty, and I say it because all the evidence is that way.” By this statement and his “miscarriage of justice” statement, the trial court in effect directed the jury to return a verdict of guilty of first degree murder.

3

Because we grant appellant a new trial on the basis of Ms first contention, it is unnecessary for us to consider appellant’s additional contentions that the trial court erred in charging the jury that no defense of intoxication was present, and by admitting into evidence certain photos of the deceased.

4

See Constitution of the Commonwealth of Pennsylvania, Art. I, §9, and accompanying Historical Note in Purdon’s, Constitution Articles 1 to 2, at 311-12.

5

See, e.g., Commonwealth v. Bonomo, 396 Pa. 222, 230, 151 A. 2d 441, 445 (1959); Commonwealth v. Orr, 138 Pa. 276, 283, 20 Atl. 866 (1890); Commonwealth v. Bloom, 88 Pa. Superior Ct. 93, 97-98 (1926); Commonwealth v. Havrilla, 38 Pa. Superior Ct. 292, 297-98 (1909); 9 Wigmore. Evidence §2493 (1940); 1 Kessler, The Law of Criminal Procedure in Pennsylvania 136 (1961); 5 Anderson, Wharton’s Criminal haw and Procedure 230 (1957); 2 Henry, Criminal Procedure in Pennsylvania 651 (2d ed. Sadler 1937).

6

Horning v. District of Columbia, 254 U.S. 135, 139, 41 S. Ct. 53, 54 (1920) (dissenting opinion) (emphasis added) (citations omitted).

7

United States v. Spock, 416 F. 2d 165, 180-81 (1st Cir. 1969) (footnotes omitted). See Buchanan v. United States, 244 F. 2d 916, 920 (6th Cir. 1957).

8

See, e.g., Commonwealth ex rel. Smith v. Rundle, 423 Pa. 93, 223 A. 2d 88 (1966); Commonwealth v. Raymond, 412 Pa. 194, 194 A. 2d 150 (1963); Commonwealth v. Cisneros, 381 Pa. 447, 113 A. 2d 293 (1955).

9

Commonwealth v. Raymond, 412 Pa. 194, 208, 194 A. 2d 150, 157 (1963).

10

Commonwealth v. Myma, 278 Pa. 505, 508, 123 Atl. 486, 487 (1924).

11

For additional observations on the great weight that a jury attaches to a judge’s opinion on the guilt of an accused, see Commonwealth v. Cisneros, 381 Pa. 447, 460, 113 A. 2d 293, 300 (1955) (dissenting opinion); United States v. Smith, 399 F. 2d 896, 898 (6th Cir. 1968); see also O’Mara, Standard Jury Charges—Findings of Pilot Project, 43 Pa. Bar Ass’n Q. 166, 173 (1972).

12

One former Justice of this Court suggested that a judge’s use of the phrase “miscarriage of justice” indicates to the jury that “they themselves might have to answer for some species of misconduct if they acquitted the defendant.” Commonwealth v. Cisneros, 381 Pa. 447, 454, 113 A. 2d 293, 297 (1955) (dissenting opinion).

13

The standards set forth in American Bar Association Project on Standards for Criminal Justice, The Prosecution Function (Ap proved Draft 1970), §5.8(b), which we relied upon in Potter, provide : “It is unprofessional conduct for the prosecutor to express his personal belief or opinion as to the truth or falsity of any testimony or evidence of the defendant.”

The ABA Code of Professional Responsibility provides: “In appearing in his professional capacity before a tribunal, a lawyer shall not . . . [a]ssert his personal opinion ... as to the credibility of a witness ... or as to the guilt or innocence of an accused. . . .” American Bar Association Special Committee on Evaluation of Ethical Standards, Code of Professional Responsibility (Final Draft 1969), DR 7-106(0) (4).

14

See, e.g., Commonwealth v. Hales, 384 Pa. 153, 119 A. 2d 520 (1956); Commonwealth v. Trunk, 311 Pa. 555, 565-66, 167 Atl. 333, 337 (1933); see generally Annotation, 34 A.L.R. 3d 1313 (1970).

15

See, e.g., Commonwealth v. McCoy, 401 Pa. 100, 162 A. 2d 636 (1960); Commonwealth v. Myma, 278 Pa. 505, 508, 123 Atl. 486, 487 (1924).

16

Cf. §5.6 of the American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Trial by Jury (Approved Draft 1968). That section provides: “Judicial Comment on Verdict. While it is appropriate for the court to thank jurors at the conclusion of a trial for their public service, such comments should not include praise or criticism of their verdict.”

17

See, e.g., Robinson v. State, 161 So. 2d 578 (Fla. D.C. App. 1964); People v. Chatman, 67 Ill. App. 2d 481, 214 N.E. 2d 545 (1966); State v. Cox, 352 S.W. 2d 665 (Mo. 1961); People v. Mulvey, 1 A.D. 2d 541, 151 N.Y.S. 2d 587 (1956); Tilford v. State, 437 P. 2d 261 (Okla. Crim. Ct. App. 1968); Holober v. Commonwealth, 191 Va. 826, 62 S.E. 2d 816 (1951); State v. Loveless, 140 W. Va. 875, 87 S.E. 2d 273 (1955); see generally 23 C.J.S. Criminal Law, §993 (1961); Comment, Power to Comment on the Issue of Guilt: Trial by Jury or Trial by Judge, 9 Till. L. liev. 440 (1964).

One jurisdiction has gone so far as to state that if a trial judge does or says anything which might prejudice the jury or be construed by the jury as indicating a belief in defendant’s guilt or innocence, a violation of the Canons of Judicial Ethics, Canon 3, has occurred. See State v. Sanders, 360 S.W. 2d 722, 726 (Mo. 1962).

In United States v. Murdock, 290 U.S. 389, 54 S. Ct. 223 (1933), the United States Supreme Court restricted the power of federal trial judges to express an opinion on the guilt of an accused to “exceptional cases.” Id. at 394, 54 S. Ct. at 225. Intermediate federal courts, in interpreting and applying Murdock, have generally agreed that an opinion as to the guilt of a defendant is only warranted when the facts are undisputed, and the only issue is whether defendant’s conduct constitutes a violation of the statute in question. See, e.g., United States v. Smith, 399 F. 2d 896 (6th Cir. 1968); McBride v. United States, 314 F. 2d 75 (10th Cir. 1963); United States v. Woods, 252 F. 2d 334 (2d Cir. 1958); Davis v. United States, 227 F. 2d 568 (10th Cir. 1955); United States v. Link, 202 F. 2d 592 (3d Cir. 1953).