Jones v. United States

• Citation: 327 F.2d 867,117 US App. DC 169
• Decision Date: 13 December 1963
• Docket Number: No. 17485.,17485.
• Parties: Willie JONES, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

117 US App. DC 169, 327 F.2d 867 (1963)

Willie JONES, Appellant, v. UNITED STATES of America, Appellee.

No. 17485.

United States Court of Appeals District of Columbia Circuit.

Argued May 10, 1963.

Decided December 13, 1963.

Mr. James J. Laughlin, Washington, D. C., for appellant. Mr. Albert J. Ahern, Jr., Washington, D. C., also entered an appearance for appellant.

Mr. Barry Sidman, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker and Joseph A. Lowther, Asst. U. S. Attys., were on the brief, for appellee.

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

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, ordered¹ 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 certiorari, June 4, 1962.³ Meanwhile Congress had adopted new legislation⁴ 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 resentence 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...