Austin v. United States

• Decision Date: 16 June 1967
• Docket Number: No. 19903.,19903.
• Citation: 382 F.2d 129,127 US App. DC 180
• Parties: Bernard AUSTIN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

127 US App. DC 180, 382 F.2d 129 (1967)

Bernard AUSTIN, Appellant, v. UNITED STATES of America, Appellee.

No. 19903.

United States Court of Appeals District of Columbia Circuit.

Argued June 14, 1966.

Decided June 16, 1967.

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Messrs. Paul A. Lenzini and Thomas J. Schwab, Washington, D. C., (both appointed by this court) for appellant.

Mr. Charles A. Mays, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Donald S. Smith, Asst. U. S. Attys., were on the brief, for appellee.

Before DANAHER, Circuit Judge, BASTIAN, Senior Circuit Judge, and LEVENTHAL, Circuit Judge.

LEVENTHAL, Circuit Judge:

Appellant Bernard Austin was indicted for murdering Nettie Scott with premeditation, deliberation, and malice aforethought. There was no felony-murder count. Appellant was convicted of first-degree murder. The prosecutor did not request the death penalty. The jury recommended life imprisonment and appellant was sentenced accordingly. D.C.CODE §§ 22-2401 (1961), 22-2404 (Supp. V, 1966). On this appeal he challenges various portions of the trial court's charge to the jury and contends that the evidence at the close of the Government's case in chief was insufficient to withstand a motion for acquittal of first degree murder.

Our opinion is in three parts. First we review the Government's evidence and the rulings of the trial judge bearing on the issues of premeditation and deliberation. In Part II we consider how common law murder has been divided by the legislature into different statutory categories, the first degree reserved for deliberated murders, such as those committed with coolness of mind, and second degree used for murders committed on impulse, in frenzy or the heat of passion. We conclude that the Government's case in chief, though ample to permit a finding of intentional murder, did not present evidence of premeditation and deliberation sufficient to warrant retention of the charge of murder in the first degree when gauged by proper tests. In Part III we conclude that the interest of justice will best be served by entry of an order, which we consider within the scope of our authority under 28 U.S.C. § 2106, remanding the case for entry of a judgment of conviction for murder in the second degree and for appropriate resentencing, but not for a new trial unless the District Court determines that a new trial is in the interest of justice.

I

The Government's evidence was as follows: Appellant was seen in the company of the deceased, Nettie Scott, for some period of time on the night in question. They were drinking together at an after-hours establishment called Will's Place, where appellant bought deceased a sandwich. During this period appellant was seen using a sharp pocket knife to repair the broken thumb nail of another female patron sitting at his table. At about 4:00 a. m. appellant left Will's place together with the deceased and her acquaintance, Mabel Proctor, and went to an all-night carry-out shop. The sandwiches bought there were eaten in appellant's truck. Appellant then drove Mabel Proctor home, dropping her off at about 4:30 a. m., and drove off in his truck with deceased. The Government produced no witness as to what happened thereafter. However, at approximately 5:00 a. m. that morning, two policemen, cruising in an unmarked car, saw appellant's truck stopped in a parking bay off the Anacostia Parkway. As they approached to investigate they noticed some clothing lying on the grass near the truck. At that point appellant came up the bank from the river, got in his truck and drove away. Further investigation revealed bloody clothing and a pool of blood in the grassy area near the parking bay. The officers retrieved from the river the mutilated and nearly lifeless body of the deceased, nude except for a piece of clothing around her neck. She died almost immediately. Appellant was apprehended later that morning. Expert testimony revealed that deceased had suffered approximately 26 major stab wounds, culminating in a stab wound to the head, penetrating the brain, and lodging the broken blade in the skull. The body had suffered at least the same number of superficial lacerations. The expert concluded that the death had been caused by hemorrhage and shock from the multiple knife wounds.

The Government also produced evidence showing that the body of the deceased had been dragged from the grassy area where the bloody clothes were found to the sea wall, and that on the slope leading down to the river had been found a man's torn and bloody shirt, similar to one owned by appellant. There was no testimony as to any fights, quarrels, animosity, or threats between appellant and deceased.

Defense counsel moved for acquittal only of first degree murder at the close of the prosecution's case and again when defense rested. Although the District Court's denial of those motions was without opinion, its underlying views of the concepts of premeditation and deliberation are reflected in its rulings and actions on instructions. The court's charge on premeditation and deliberation¹ instructed the jury that premeditation is the formation of an intention to kill, and deliberation means a further thought upon the plan to kill. The judge charged the jury that "although some time" is required for deliberation, deliberation may be sufficient "though it be of an exceedingly brief duration," and that the time "may be in the nature of hours, minutes or seconds."

Appellant requested that the time required for deliberation be stated as "some appreciable period of time," rather than "some period of time" as originally proposed by the judge. The court not only declined this request but changed the instruction submitted to counsel ("it does not require the lapse of days or hours or even minutes") to include the reference to "seconds."

Appellant has been represented by capable appointed counsel both in the District Court and on appeal. His counsel have focused essentially on two approaches: first, avoidance of a judgment of first degree murder by stressing both the evidence of intoxication and the lack of evidence of deliberation, and second, offering a claim of insanity — a claim supported by testimony offered by defense counsel but rejected by the jury.

II

1. It may be helpful to approach the issues presented by this appeal with the perspective of history.

At common law, unlawful homicides were divided into two classes, murder and manslaughter, depending on whether the killing was with or without malice aforethought. Although the term malice aforethought was most probably intended to be applied literally when it was first introduced into the law of homicide, the courts soon converted it into a term of art. To the popular understanding of subjective malice was added an objective standard, by which negligence tantamount to recklessness might make a culpable homicide murder. The objective standard persists in the law,² but what we are primarily concerned with here is not so much the extension of "malice"³ as the elimination of the literal significance of the word "aforethought." The courts held it sufficient to establish common law murder, subject to capital punishment, if the homicide was accompanied by the intention to cause death or grievous bodily harm, whether the slaying was calculated or only impulsive.

The nineteenth century ushered in a new approach. Beginning in 1794 with Pennsylvania, state legislatures began to separate murder into two degrees, reserving the death penalty for the first degree. These statutes typically defined murder in the first degree as an intended killing, accompanied by premeditation and deliberation (as well as malice aforethought); murder in the second degree was defined residually to include all other unlawful homicides with malice aforethought. In 1901 Congress passed such a statute for the District of Columbia. D.C. Code §§ 22-2401, 22-2403 (1961).

As we have noted:

Statutes like ours, which distinguish deliberate and premeditated murder from other murder, reflect a belief that one who meditates an intent to kill and then deliberately executes it is more dangerous, more culpable or less capable of reformation than one who kills on sudden impulse; or that the prospect of the death penalty is more likely to deter men from deliberate than from impulsive murder. The deliberate killer is guilty of first degree murder; the impulsive killer is not. Bullock v. United States, 74 App.D.C. 220, 221, 122 F.2d 213, 214 (1941)⁴

The reports reflect the effort of some courts to carry out the legislative conception, by interpreting "deliberation" to call for elements which the word normally signifies — that the determination to kill was reached calmly and in cold blood rather than under impulse or the heat of passion⁵ and was reached some appreciable time prior to the homicide. The more widespread judicial tendency was marked by a restrictive reading of the statutory terms. "The statutory scheme was apparently intended to limit administrative discretion in the selection of capital cases. As so frequently occurs, the discretion which the legislature threw out the door was let in the window by the courts."⁶

Judge, later Justice, Cardozo, in a memorable 1928 address,⁷ voiced his concern over the judicial attenuation of premeditation and deliberation. He spoke against the background of the New York experience, where, although the courts had abandoned their early statement that it sufficed if intention preceded the act though the act followed instantly,⁸ they held that the time for deliberation need not be long, and seconds might suffice, provided there was time for a choice to kill or not to kill.⁹ Judge Cardozo said:

There can be no intent unless there is a choice, yet * * * the choice without more is enough to justify the inference that the intent was deliberate and premeditated. The presence of a sudden impulse is said to mark the

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