Willie Jones v. United States

327 F.2d 867, 117 U.S. App. D.C. 169, 1963 U.S. App. LEXIS 3445

• Court: Court of Appeals for the D.C. Circuit
• Decided: December 13, 1963
• Docket: 17485
• Status: Published

Opinions

DANAHER, Circuit Judge, with whom WILBUR K. MILLER, WASHINGTON, BASTIAN, BURGER and McGOWAN, Circuit Judges, join:

A jury on April 25, 1959 found Jones guilty of assault with intent to kill one Alma Jordan, and of murder in the first degree in that he had shot to death one Reginald L. Winters as the latter sat at the woman’s bedside in a local hospital. On appeal, this court, sua sponte, ordered ¹ hearing en banc. We unanimously affirmed appellant’s conviction of assault with intent to kill Alma Jordan, but the first degree conviction was affirmed by decision of a divided court on October 5, 1961.² The Supreme Court denied cer-tiorari, June 4, 1962.³ Meanwhile Congress had adopted new legislation ⁴ dealing with the punishment of murder. Our present question is: what bearing has the 1962 Act as to punishment of murder in the first degree upon this appellant’s sentence, imposed in 1959?

I

Pursuant to the command of the statute⁵ the District Judge on October 9, 1959 had pronounced the sentence of death by electrocution to be carried out on January 8, 1960. He incorporated into the judgment a further provision which reads:

“provided, however, that if an appeal from this judgment be taken to the United States Court of Appeals for the District of Columbia Circuit, the sentence of death shall be stayed until the mandate of said Court of Appeals, or, if certiorari shall have been granted, until the mandate of the United States Supreme Court shall have been issued to this Court, and the Court shall have fixed a new date of execution.”

Such were the terms of the judgment which this court affirmed and which the Supreme Court refused to review. The appellant had been convicted. He had been sentenced as required by the statute, and the litigation on the merits had finally been terminated. Nothing remained to be done but to enforce by execution what had been determined.⁶

It is clear beyond peradventure that this court had and has no control over a sentence which comports with the applicable statute,⁷ “even though it be a death sentence.” ⁸ Nor may we reduce or modify a sentence nor require a trial judge to do so.⁹

II

Such was the state of the law known to Congress when Public Law 87-423¹⁰ was adopted. No new crime was created for the legislation dealt only with punishment. The Act, effective March 22, 1962, provided that thenceforward the punishment of murder in the first degree shall be death by electrocution unless the jury by unanimous vote shall recommend life imprisonment. Should the court be informed that the jury after determining guilt is unable to agree as to punishment, the judge is authorized “to impose and shall impose either a sentence of death by electrocution or life imprisonment.”¹¹ Such provisions, obviously prospective in operation, did not apply to sentences imposed prior to March 22, 1962, for the amendatory Act contained no language applying its ameliorating provisions to previously committed offenses.¹²

Thus Congress was specific on the point that final judgments were not vacated for the Act provided:

“Cases tried prior to the effective date of this Act 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 the effective date of this Act: Provided, That the judge may, in his sole discretion, consider circumstances in mitigation and in aggravation and make 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 supplied.)¹³

Quite apart from the language of the 1962 Act but nonetheless apt is that portion of Title I, U.S.Code § 109¹⁴ which provides that the

“repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.” ¹⁵

The conclusion is inescapable that the death sentence not only was mandatory, final and unreviewable, but that sentence had not been vacated by the amendatory Act. There remained to the appellant only the possibility of relief to be accorded pursuant to the proviso. The judge was authorized “in his sole discretion”¹⁶ to take two steps: to (1) “consider circumstances in mitigation and in aggravation and [2] make a determination as to whether the case in his opinion justifies a sentence of life imprisonment * * (Emphasis supplied.) Should he decide that life imprisonment was appropriate he was to re-sentence the appellant “in accordance with the provisions of this Act.”¹⁷

III

After the Supreme Court on June 6, 1962 had denied appellant’s petition for a writ of certiorari, this court’s mandate was reissued to the District Court on June 11, 1962. Thereupon, appellant through counsel filed a timely “Motion to Reduce or Modify Sentence” ¹⁸ seeking a hearing that he might “offer testimony in mitigation of the offense” to the end that the death sentence might be reduced to one of life imprisonment.

The text of the motion particularized that “a request will be made” that the District Court

“authorize and direct a commitment to St. Elizabeths Hospital for an extended period to determine the mental capacity of the defendant at this time. At - the trial there was considerable evidence introduced as to the defendant’s mental capacity at the time of the offense. We are confident that a full examination at this time by the staff at St. Elizabeths Hospital will result in a finding of unsoundness of mind at the present time. This, of course, would make impossible the infliction of the penalty already imposed by the court.” (Emphasis supplied.)¹⁹

The motion for reduction of sentence came on for hearing on October 5, 1962. Defense attorney Ahern, the record shows, earnestly pressed upon the notice of the judge certain evidence as to the appellant’s lack of sanity, the history of his earlier commitment by unanimous order of the Mental Health Commission and like references. He argued that “mitigation” as used in the Act was intended to permit the judge to review the whole record and to consider facts which “maybe didn’t come out in the case.” He persisted, “Of all things that could come under this statute would be this man’s mental condition.” The judge commented “All that has been submitted to the jury, and the jury found him guilty.” There is nothing in the transcript of the October 5, 1962 proceedings'to suggest that the judge then considered an inquiry into the mental condition of the appellant as of that time. Government counsel stood on the record of affirmance of- the conviction, and saw no reason “why this court should modify the sentence heretofore imposed.” (Emphasis added.)

As the October 5th hearing was being concluded, the judge announced his intention to take under consideration the motion to reduce sentence. He granted defense counsel time to file a supporting memorandum. Then the following occurred :

Defense counsel: “Then at a later time we will take up the other motion, is that correct?

“The Court:, What other motion?

“Mr. Laughlin: The motion for a mental examination.

“The Court: I didn’t know there was such a motion pending. Is there such a motion?

“Mr. Laughlin: Yes * *

There was no further discussion of that motion on October 5th. By October 19, 1962 no such memorandum had been filed. Counsel made no proffer of testimony on any phase of the problem. It fairly may be said he had offered no help to the judge whose “discretion” he had sought to invoke. Counsel argued only that the statute was vague and was lacking in standards for determination of “factors in mitigation.”

During colloquy and before the judge announced his ruling, defense counsel made no further reference to the appellant’s motion for a mental examination. Thus stood the record as the judge on October 19, said:

“It is my judgment that there are no mitigating circumstances that would warrant the Court in granting the motion to reduce or modify the sentence and, therefore, the motion is denied. I will file with the clerk a brief opinion stating my views in that regard.”

The motion for reduction of sentence was denied. Without further hearing as to “circumstances” either in mitigation or aggravation, the judge in the final sentence of his written opinion filed on October 19, 1962 said:

“Upon consideration of all of the circumstances in mitigation and in aggravation, it is the determination of the Court that the case in its opinion does not justify a sentence of life imprisonment but that the sentence shall be governed by the provisions of law in effect prior to the effective date of Public Law 87-423.” ²⁰

The course of proceedings as this record shows, had clearly become inverted, for the ruling came without consideration of the pending motion for a mental examination. That motion, on file since October 2, 1962, had asked “for a complete mental examination at this time.” It was supported by the unrefuted affidavit of the appellant’s sister.²¹ It is our conclusion since life was at stake, the judge on October 19, 1962 should not have acted upon the motion for reduction of sentence without consideration of adequate information as to the appellant’s mental condition or possible lack of mental competency as of that date. Such an examination might have disclosed that the appellant then was unable to understand the nature of the proceedings and to assist his counsel or to make allocution in his own behalf. Had such lack of mental competency appeared, for as long as that condition might continue, the law would have required that the death sentence not be executed and that the appellant be committed to a mental institution. On the record here, we conclude that an examination of such scope and depth as we have noted was an imperative prerequisite that there might be a determination of present competency.

IV

It fairly appears that defense counsel had hoped — without more — to procure a favorable ruling simply upon the basis of argument of the motion for reduction of sentence. When on October 19, 1962 he saw that relief was thus denied, he turned to the motion for mental examination.

Government counsel informed the judge: “We do not oppose the motion, but we must say to the Court that we don’t advocate it either and ask that the Court allow it. We feel that it is a matter for the Court.” Government counsel added that an examination, if ordered,²² should relate only to “his present mental competency.” The judge agreed “The only question now before the Court is his present mental condition.” Defense counsel concurred. The judge announced he would grant the motion “in view of the seriousness of the case and the consequences.” As he later correctly observed :

“It seems to me that what I am facing up to is the matter of the duty of the Court, what you might call the common law duty of the Court to determine the question of this man’s present mental condition, as to whether or not the sentence should be carried out.”

The judge thus succinctly went to the heart of the problem, with a complete awareness of its implications. Certainly no right of trial by jury is essential.²³ “A jury having found a verdict against the plea of insanity when set up as a defence [sic] to conviction, subsequent insanity cannot be set up in disproof of the conviction. The plea at this ' stage is only an appeal to the humanity of the court to postpone the punishment until a recovery takes place, or as a merciful dispensation.” ²⁴

We may understand that “Applications for inquiries into sanity made by a defendant sentenced to death, unsupported by facts, and buttressed by no good reasons for believing that the defendant has lost his sanity, cannot, with any appropriate regard for society and for the . judicial process, call for the delays in execution incident to full judicial inquiry.” ²⁵ On the other hand, a distinguished jurist has written that the self-respect of society demands that a man not be sent “to his death on the basis of a proceeding as to his sanity in which all opportunity on his behalf has been denied to show that he is in fact in that condition of insanity which bars the State from killing him.” ²⁶

Recognizing such considerations, ' the sentencing judge in aid of his “common law duty”²⁷ appointed three psychiatrists to examine the appellant. They made report that the appellant had ' refused communication with them. They talked with him only through cell bars. None of the doctors was called to testify. In addition to what evidence they might . have offered, there was the Beasley af- . fidavit as to the appellant’s post-conviction mental disorder. Moreover, there was much additional evidence available from various psychiatrists who had earlier examined the appellant. The Mental Health Commission unanimously had ordered the appellant’s commitment, long before the trial. A current examination was in order, followed by testimony as to the findings of the experts, and the testimony of others possibly to be available as we have indicated.²⁸

If there had thus been established a basis for a determination of post-conviction unsoundness of mind, the appellant, as we have noted, would have been committed to a mental institution. Contrariwise, if the appellant had then been found mentally competent, the amendatory Act had conferred upon the judge the power to take into account whatever considerations “should be allowed weight in deciding the question whether the accused should or should not be capitally punished * * ²⁹

We can not know what conclusion might have been reached, had the judge here with such principles in mind, conducted the permissible inquiry before passing upon the motion to reduce sentence.

We remand for further proceedings consistent with this opinion.

Reversed and remanded.

1 . We were quite aware that the case presented various important questions. Relevant also was our realization that the law as it then read provided that the “punishment of murder in the first degree shall he death by electrocution.” (Emphasis supplied.) D.C.Code § 22-2404 (1951).

2 . Jones v. United States, 111 U.S.App.D.C. 276, 296 F.2d 398 (1961). The “defendant” had asked to be found not guilty by reason of insanity. Our joint view read:

“It is argued to us that the evidence respecting the mental condition of the accused required a directed verdict of not guilty by reason of insanity. Without relating the testimony we deem it sufficient to say we are of opinion that a question for the jury was presented.” 111 U.S.App.D.C. at 282, 296 F.2d at 404.

3 . 370 U.S. 913, 82 S.Ct. 1260, 8 L.Ed.2d 406.

4 . P.L. 87-423, approved March 22, 1962, 76 Stat. 46, D.C.Code § 22-2404 (Supp. II, 1961).

5 . Supra note 1.

6 . Berman v. United States, 302 U.S. 211, 212, 213, 58 S.Ct. 164, 82 L.Ed. 204 (1937).

7 . United States v. Rosenberg, 195 F.2d 583, 604, 607 (2 Cir.), cert. denied, 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 652 [and see 344 U.S. 850, 889, 73 S.Ct. 66, 134, 97 L.Ed. 661, 687 (1952)]; cf. Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958).

8 . Rosenberg v. United States, 346 U.S. 273, 278, 73 S.Ct. 1152, 1162, 97 L.Ed. 1607 (1953), quoting from separate memorandum of Frankfurter, J., 344 U.S. 889, 890, 73 S.Ct. 134, 97 L.Ed. 687 (1952).

9 . Bryson v. United States, 265 F.2d 9, 14 (9 Cir.), cert. denied, 360 U.S. 919, 79 S.Ct. 1437, 3 L.Ed.2d 1535 (1959). Where the prescribed sentence is not mandatory, “facts and circumstances before the trial court” may properly influence the extent of punishment. Block-burger v. United States, 284 U.S. 299, 305, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932).

10 . See note 4 supra.

11 . Ibid. In yet other respects not here pertinent, the amendatory Act effectually repealed D.C.Code § 22-2401 (Supp. II, 1961). United States v. Tynen, 11 Wall. 88, 92, 78 U.S. 88, 92, 20 L.Ed. 153 (1871).

12 . Lovely v. United States, 175 F.2d 312, 317 (4 Cir. 1949); Duffel v. United States, 95 U.S.App.D.C. 242, 221 F.2d 523 (1954); Hurwitz v. United States, 60 App.D.C. 298, 53 F.2d 552 (1931); Maceo v. United States, 46 F.2d 788, 789 (5 Cir. 1931).

13 . The purpose of the proviso was to make it possible for the court to deal with a special class of cases. United States v. McElvain, 272 U.S. 633, 638-639, 47 S.Ct. 219, 71 L.Ed. 451 (1926); United States v. Ewing, 140 U.S. 142, 148, 11 S.Ct. 743, 35 L.Ed. 388 (1891); cf. Husty v. United States, 282 U.S. 694, 702-703, 51 S.Ct. 240, 75 L.Ed. 629 (1931).

14 . Act of July 30, 1947, 61 Stat. 633, codifying Title I.

15 . This language derived from Rev.Stat. § 13, 58 Stat. 118, 1 U.S.Code § 29 (1946). And see cases cited in note 12 supra.

16 . In Strather v. United States, 13 App.D.C. 132 (1898), the trial judge instructed the jury that life imprisonment might not be recommended unless the jury found that mitigating circumstances would seem to require that result. Winston v. United States, 13 App.D.C. 157 (1898) was controlled by this Strather opinion. Reversing in Winston v. United States, 172 U.S. 303, 313, 19 S.Ct. 212, 215, 43 L.Ed. 456 (1899), the Supreme Court pointed out that the Act “does not itself prescribe, nor authorize the court to prescribe, any rule defining or circumscribing the exercise of this right; but commits the whole matter of its exercise to the judgment and the consciences of the jury. The authority of the jury to decide that the accused shall not be punished capitally is not limited to cases in which the court, or the jury, is of opinion that there are palliating or mitigating circumstances.” And see Andres v. United States, 333 U.S. 740, 743 n. 4, 68 S.Ct. 880, 92 L.Ed. 1055 (1948). Cf. Krull v. United States, 240 F.2d 122, 134, 135 (5 Cir.), cert. denied, 353 U.S. 915, 77 S.Ct. 764, 1 L.Ed.2d 668 (1957).

17 . The prisoner thus would have been eligible for parole “only after the expiration of twenty years from the date he commences to serve his sentence.” Supra note 4. Under D.C.Code § 24-203 (1961), a sentence of life imprisonment required a minimum sentence not to “exceed fifteen years’ imprisonment.”

18 . “Such a motion is essentially a plea for leniency and presupposes a valid conviction.” Poole v. United States, 102 U.S.App.D.C. 71, 76, 250 F.2d 396, 401 (1957). Fed.R.Crim.P. 35 provides that the District Court “may reduce a sentence * * * within 60 days after receipt of an order of the Supreme Court denying an application for a writ of certiorari.”

19 . By October 5, 1962 when argument upon the motion was heard, more than four years had elapsed since the appellant had been examined at the D. C. General Hospital to determine his competency to stand trial. Of. course, he had been incarcerated throughout the intervening period.

20 . There had been only argument by counsel that the judge should “consider circumstances.” Procedural^, the relief possibly to be available under the amenda-tory Act had become elided with the appellant’s prayer for a hearing on his motion for reduction of sentence. There had been neither allegations of fact nor other showing in respect of whichever course the defense intended to pursue. Were this not a capital case we might perceive a waiver in either event. Cf. Williams v. Oklahoma, 358 U.S. 576, 583, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959), and note the remarkable similarity of the Oklahoma statute, § 973, to that of our amendatory Act. Id., 358 U.S. at 582 n. 6, 79 S.Ct. at 425, 3 L.Ed.2d 516.

21 . Dated September 25, 1962 the affidavit reads:

“Affidavit of Emmie Beasley

“Emmie Beasley, being first duly sworn on oath as required by law, deposes and says that she is the sister of the defendant Willie Jones. Affiant visits him regularly at the District Jail. She says that it has been apparent to her and to other members of the family that he is deteriorating mentally. He has lapses of memory, is very much depressed and at times talks irrationally. Affiant believes that his mind is so seriously impaired that he is now suffering from a severe mental disorder and it is the wish of the family that there now be a complete mental examination by direction of this Court.

/s/ Emmie Beasley”

In Wells v. United States, 99 U.S,.App. D.C. 310, 239 E.2d 931 (1956), this court en T)ano observed that Wells had been found competent when sentenced, but there had been no determination that he was competent when tried. The latter element is not in issue here. We remanded in Wells, pointing out that the trial court should order whatever examination and receive whatever evidence might aid in arriving at a proper determination as to the appellant’s mental condition. We noted the absence of evidence that the experts had interviewed the appellant’s relatives, friends, or acquaintances. Here, where the appellant’s record discloses a substantial background of opportunity for observation in various mental institutions as well as in the jail, it would appear that much relevant information may be available to the court through the testimony of psychiatrists and others.

22 . He expressed the view that if a mental examination were to be ordered, independent psychiatrists should be appointed since the appellant had been in the District of Columbia General Hospital and in St. Elizabeths Hospital.

23 . Nobles v. Georgia, 168 U.S. 398, 407, 18 S.Ct. 87, 42 L.Ed. 515 (1897); cf. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Brady v. State, 226 Md. 422, 174 A.2d 167 (1961).

24 . Nobles v. Georgia, supra note 23, 168 U.S. at 407, 18 S.Ct. at 91, 42 L.Ed. 515. For discussion of the problem see the opinion of Frankfurter, X, dissenting in Solesbee v. Balkcom, 339 U.S. 9, 14 (1950), with the appendix at p. 26 summarizing state legislation and judicial decisions concerning execution of death penalty where insanity intervenes after sentence, 70 S.Ct. 457, 459-460, 465, 94 L.Ed. 604. See Phyle v. Duffy, 334 U.S. 431, 68 S.Ct. 1131, 92 L.Ed. 1494 (1948); Caritativo v. California, 357 U.S. 549, 78 S.Ct. 1263, 2 L.Ed.2d 1531 (1958); and notes in 23 So.Cal.L.Rev. 246 (1950); 48 Mich.L.Rev. 1189 (1950); 72 Harv.L.Rev. 181 (1958).

25 . Phyle v. Duffy, supra note 24, 334 U.S. at 443, 68 S.Ct. at 1136, 92 L.Ed. 1494.

26 . Frankfurter, J., dissenting in Solesbee v. Balkcom, supra note 24, 339 U.S. at 23-24, 70 S.Ct. at 464, 94 L.Ed. 604.

27 . D.C.Code § 24-301 (1961) may apply in certain situations as when “it shall appear to the court from the court’s own observations, or from prima facie evidence submitted to the court, that the accused is of unsound mind or is mentally incompetent so as to be unable to understand the proceedings against him.” For the definition of “prima facie evidence” as meaning “sufficient to establish the fact,” see Neely v. United States, 80 U.S.App.D.C. 187, 150 F.2d 977, cert. denied, 326 U.S. 768, 66 S.Ct. 166, 90 L.Ed. 463 (1945). Cf. McIntosh v. Pescor, 175 F.2d 95, 98, 99 (6 Cir. 1949).

28 . See note 21 supra,.

29 . Winston v. United States, supra note . 16, 172 U.S. at 313, 19 S.Ct. at 215, 43 L.Ed. 456; cf. Williams v. People of State of New York, 337 U.S. 241, 246, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949).