Frady v. United States

Citation348 F.2d 84,121 US App. DC 78
Decision Date07 May 1965
Docket Number18358.,No. 18357,18357
PartiesJoseph C. FRADY, Appellant, v. UNITED STATES of America, Appellee. Richard A. GORDON, Appellant, v. UNITED STATES of America, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Mr. Henry Lincoln Johnson, Jr., Washington, D. C., for appellants.

Mr. David C. Acheson, U. S. Atty., with whom Messrs. Frank Q. Nebeker, William H. Collins, Jr., and Anthony A. Lapham, Asst. U. S. Attys., were on the brief, for appellee. Mr. Jerome Nelson, Asst. U. S. Atty., and Mr. Daniel H. Benson, Attorney, Department of Justice, also entered appearances for appellee.

Mr. Anthony G. Amsterdam, Washington, D. C., appointed by this court, argued as amicus curiæ.

Before BAZELON, Chief Judge, WILBUR K. MILLER, Senior Circuit Judge, and FAHY, WASHINGTON, and DANAHER, Circuit Judges, and BASTIAN, Senior Circuit Judge, and BURGER, WRIGHT, and McGOWAN, Circuit Judges, sitting en banc.

Certiorari Denied November 8, 1965. See 86 S.Ct. 247.

PER CURIAM.

The judgments of conviction of first degree murder and of robbery are affirmed. The death sentences are set aside with directions that each appellant be resentenced to life imprisonment on the verdicts of guilty of first degree murder. Circuit Judge Wright dissents from the affirmance of the convictions of first degree murder. Senior Circuit Judge Wilbur K. Miller, Circuit Judge Danaher, Senior Circuit Judge Bastian, and Circuit Judge Burger dissent from the setting aside of the death sentences and from the directions that each appellant be resentenced to life imprisonment.

It is so ordered.

TAMM, Circuit Judge, took no part in the consideration or decision of these cases as he was not a member of the court when the cases were considered and decided.

LEVENTHAL, Circuit Judge, took no part in the consideration or decision of these cases.

FAHY, Circuit Judge, with whom BAZELON, Chief Judge, and WASHINGTON and WRIGHT, Circuit Judges, join, except that for reasons stated in his separate opinion Judge WRIGHT does not join in Part I:

Appellants Joseph Frady and Richard Gordon, then twenty-two and eighteen years of age, respectively, were convicted of first degree murder in the killing of one Thomas Bennett with deliberate and premeditated malice. 22 D.C.Code § 2401.1 They are under sentences of death. For the reasons stated herein and in the opinion of Circuit Judge McGowan the death sentences are set aside and, exercising its authority under 28 U.S.C. § 2106,2 the court directs the imposition of life imprisonment, the only sentence other than death that can be imposed for first degree murder.

I.

The problems involved in affirming the convictions are fully discussed in the opinions written by Circuit Judge Wilbur K. Miller, for affirmance, and by Circuit Judge Wright, for reversal. The most troublesome contention for reversal is directed to the sufficiency of the evidence to support the jury's conclusion beyond a reasonable doubt that the homicide was "of deliberate and premeditated malice." A majority of the court concludes that the evidence was sufficient.

II.

The sentences of death are a different matter. In my view they have been erroneously imposed. I now explain why.

22 D.C.Code § 2404, as amended March 22, 1962, abolished in this jurisdiction the mandatory death sentence for first degree murder. The punishment now turns upon jury action. It is death "unless the jury by unanimous vote recommends life imprisonment" or if the jury "having determined by unanimous vote" that the defendant is guilty of first degree murder "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 life imprisonment." The text is set forth more fully in the margin.3

Congress thus transferred to the jury responsibility theretofore lodged in the statute which made the death sentence mandatory. In considering how this new jury responsibility was sought to be guided in these cases I find two errors which require the death sentences to be set aside.

(1) The first error discussed is the court's instruction to the jury that "in order to return a verdict it is necessary that each juror agree thereto * * *. Your verdict must be unanimous." The full context of the particular instruction is set forth in the margin.4

This instruction, although intended to guide the jury in considering the issue of guilt, was given without qualification as though applicable to the punishment as well. But there is no need for agreement as to punishment. Unanimity is required only for a verdict of guilty or not guilty. Lack of unanimity as to punishment is altogether in order.

Earlier in the charge, it is true, the jury was instructed that each juror was to make an individual decision as to penalty and that lack of agreement should be reported to the court. But this did not cure the strong suggestion to seek unanimity. As the Supreme Court stated in Andres v. United States, 333 U.S. 740, 68 S.Ct. 880, 92 L.Ed. 1055, with respect to instructions which similarly could have been misunderstood,5 "in death cases doubts such as those presented here should be resolved in favor of the accused." 333 U.S. at 752, 68 S.Ct. at 886.

It is true also that on the written forms of special verdicts, to be discussed more fully hereinafter, the court provided a place to express disagreement on punishment, and carefully instructed the jury on the use to be made of the forms. But a place to express disagreement does not dispel the effect of an instruction designed to achieve agreement. I readily recognize that in considering the instructions and forms as a whole the jury may have understood the difference between their functions as to guilt on the one hand and punishment on the other. But a doubt lingers in seeking now to assess the effect of the questioned instruction. If the doubt is left unresolved it leads to death. In resolving it, as must be done, life is favored.

(2) The second error impairing the validity of the death sentences has to do with the poll. The court had supplied each juror with a mimeographed form of special verdict to be filled out according to the conclusions reached, or not reached, as to both guilt and punishment. Three forms of special verdicts were given to each juror, covering the several counts in the indictment and the possible verdicts. The form for count one, charging first degree murder of deliberate and premeditated malice, reads as follows:

"FIRST COUNT VERDICT "First Degree Murder ..................

(Possible Verdicts:
1. Not Guilty.
2. Guilty as charged of First Degree Murder.
3. Guilty as Charged of First Degree Murder with recommendation of Life Imprisonment.
4. Guilty as charged of First Degree Murder with the jury unable to agree as to punishment.
5. Guilty of Murder in the 2nd Degree.
6. Guilty of Manslaughter.

"(NOTE: If the Jury returns a verdict of Guilty as charged of First Degree Murder (being No. 2), and makes no recommendation as to Life Imprisonment and does not state that the Jury is unable to agree as to punishment, the Court must under the Law, sentence the defendant to death by electrocution.

"If the Jury returns a verdict of Guilty as charged of First Degree Murder with recommendation of Life Imprisonment (being No. 3), the Court must sentence the defendant to Life Imprisonment.

"If the Jury returns a verdict of guilty as charged of First Degree Murder with the Jury unable to agree as to punishment (being No. 4), the Court will thereupon have the duty to fix the penalty and will impose either a sentence of death by electrocution or a sentence of life imprisonment at the discretion of the Court."

It will be seen that the text of the No. 2 verdict does not in terms refer at all to punishment. This vital matter is left to an explanatory note. After the jury returned to the courtroom from their deliberations, a copy of the forms was handed to the deputy clerk by the foreman. On the form pertaining to first degree murder of deliberate and premeditated malice the foreman had written after "Verdict" the words "Guilty as charged of First Degree Murder." He alone had signed the forms handed to the deputy clerk as the official verdicts. The record shows the following took place at this time:

"Deputy Clerk: Will the foreman please stand. (The foreman stood.)
"Deputy Clerk: Mr. Foreman, is the jury agreed upon a verdict?
"Foreman: We have. (The verdicts were handed to the deputy clerk.)
"Deputy Clerk: Members of the jury, your foreman says that you find the defendant Joseph C. Frady not guilty on Count 2, guilty as charged of first degree murder on Count 1 and guilty as charged on Count 3;
"That you find the defendant Richard A. Gordon not guilty on Count 2, guilty as charged of first degree murder on Count 1 and guilty as charged on Count 3;
"And that is your verdict, so say you each and all? (The jurors, in unison, indicated in the affirmative.)"

As I have said the judge in his oral instructions carefully explained the forms and how they should be used. Nevertheless the form actually used in returning the murder verdict of guilty is not as well designed to avoid uncertainty as the form used in United States v. White, 225 F.Supp. 514, 523 (D.D.C. 1964). Judge Youngdahl there stated:

"It is fairest to the defendant for the jury to have the full range of clearly distinguished alternatives before them for consideration at one time. Thus this Court submitted a verdict form which read:
"`Guilty of First Degree Murder, punishment of Death ________;
"`Guilty of First Degree Murder, punishment of Life Imprisonment __________;
"`Guilty of First Degree Murder, unable to agree as to punishment __________;
"`Guilty of Second Degree Murder __________;
"`Guilty of Manslaughter _______;
"`Not Guilty ________.\'"

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