Cook v. United States
Decision Date | 29 June 1967 |
Docket Number | No. 23604.,23604. |
Citation | 379 F.2d 966 |
Parties | John Sydney COOK, Jr., Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
George S. Wright, Tuscaloosa, Ala., L. Drew Redden, Rogers, Howard, Redden & Mills, Birmingham, Ala., for appellant.
Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson, Joseph M. Howard, Attys., Dept. of Justice, Washington, D. C., Ben Hardeman, U. S. Atty., J. O. Sentell, Asst. U. S. Atty., Montgomery, Ala., for appellee.
Before GEWIN and AINSWORTH, Circuit Judges, and LYNNE, District Judge.
Appellant, an Alabama attorney, was convicted on three counts of wilfully understanding his total receipts, less allowances, rebates and returns from the practice of law on Schedule C of each of his personal income tax returns for the years 1959, 1960 and 1961, in violation of 26 U.S.C. § 7206(1). He was sentenced to a term of imprisonment of eighteen months and to pay a fine of $5,000 plus cost of prosecution. He has appealed and assigns numerous errors in connection with the trial of his case.
The principal question to be resolved is whether the verdict of the jury, which contained the request that the court give the defendant every degree of leniency possible, was certain, unqualified and unambiguous considering the circumstances of the receipt of the verdict and poll of the jurors relative to their verdict. Also involved is the question whether it was error for the court to fail to ask a defense-requested, voir dire question to prospective jurors whether they were acquainted with or related to an important named Government witness.
The district court initially charged the jury that "* * * in the event that there is a verdict of guilty in the case, it is the Judge's duty to determine what the appropriate punishment is in the case; and the law does not impose that duty and responsibility upon jurors in a case such as this."
The trial judge also charged the jury as to the possible verdicts it might return in the case. He said:
In the face of these instructions by the court, the jury returned a verdict in the following form:
When the verdict was read the court immediately responded to the jury as follows:
Thereupon counsel for defendant requested the jury be polled.1 The first juror responded to the question, "Guilty or not guilty?" by stating, "I was reluctant to at the beginning; I voted guilty." The next juor said, "Guilty, sir." The third juror stated, "Guilty, based on the note at the bottom." The remaining jurors responded, all substantially in the following language, "Guilty, as noted at the bottom of the verdict." Counsel for defendant then requested, out of the jury's presence,2 that the court inquire of each juror whether their guilty vote was qualified by the addition of the note on the bottom of the verdict which was the request for every degree of leniency possible. But the court declined to make such inquiry, or to further pursue the matter, declaring that the jury had found the guilt of the defendant without any qualification. Defense counsel then requested the court to inquire of the jury whether their votes would be for conviction if they were advised they could not make the recommendation or that the recommendation was not a subject for their consideration. The court declined again.3
We hold that the court committed reversible error when it denied the defendant's request that these inquiries be made of the jury.
It is true that the district judge originally informed the jury in his charge that it was his duty, not the jury's, to assess the punishment in the case of a verdict of guilty. Upon receipt of the verdict the court stated that it was his policy in such cases not to sentence until he had been presented with a complete presentence probation report by the probation officers; that the probation officer had been in attendance throughout the trial; and that thorough study would be made of the presentence report which the probation officer prepared and the defendant, his lawyers, members of his family and friends would have a full opportunity to discuss the sentence with the judge before it is imposed.
Despite this statement of the court's policy and in the face of the original instruction as to punishment and as to the possible verdicts, the poll of the jurors showed one voted guilty though he was "reluctant to at the beginning," another unqualifiedly voted guilty, another voted guilty, "based on the note at the bottom," and nine voted guilty, each of these stating substantially "as noted at the bottom of the verdict." Under the circumstances, we are left with serious doubt that the jury did not qualify its verdict of guilty by predicating and conditioning it on the request for "every degree of leniency possible."
When the court declined to inquire of each member of the jury whether their verdict was qualified, he said that there were cases which support his denial; that he "doesn't have to pay any attention to the request" for leniency. It is the general rule that if the jury, without statutory authority, makes a recommendation for clemency, it does not invalidate the verdict and may be disregarded by the court in imposing sentence. Krull v. United States, 5 Cir., 1957, 240 F.2d 122; Thlinket Packing Co. v. United States, 9 Cir., 1916, 236 F. 109; 23A C.J.S. Criminal Law § 1407, p. 1100. The circumstances here, however, are exceptional. Without more, the jury's request for extreme leniency should be treated as surplusage. But where the circumstances strongly suggest that there would have been no agreement as to the verdict unless the recommendation of leniency was also accepted, the effect of the recommendation, steadfastly adhered to on the poll, was to nullify the verdict. 23A C.J.S. Criminal Law § 1407, pp. 1102-1103. There is no verdict as long as there is any uncertainty or contingency to the finality of the jury's determination. 23A C.J.S. Criminal Law § 1393, pp. 1054-1055. Cf. Garrett v. State, 159 Tex.Cr.R. 203, 1953, 262 S.W. 2d 414.
In the present case the district court had an opportunity to remove the cloud from the verdict by making the requested inquiry whether the verdict was qualified by the addition of the note on the bottom of the verdict (i. e., the request for "every degree of leniency possible"). At this point the circumstances were highly unusual. It was imperatively necessary that the court then and there determine the jury's intent because the verdict was not in any of the precise forms submitted to it under the court's instructions, and especially because in the subsequent poll of the jury by the court most of the jurors reaffirmed that their verdict of guilty was "based on the note at the bottom" or "as noted at the bottom of the verdict." Despite the court's remarks to the jury on receipt of their verdict, it was apparent that the jurors were standing firmly in their determination that "every degree of leniency possible" should be accorded the accused. One juror — and one would be enough to destroy the unanimity required for a verdict — went so far as to state when polled that his verdict was "Guilty, based on the note at the bottom."4 (Emphasis supplied.) But the district court declined the request. Defense counsel then requested that the...
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