United States v. Bardford
| Decision Date | 26 August 1975 |
| Docket Number | No. 8093.,No. 8245.,8093.,8245. |
| Citation | 344 A.2d 208 |
| Parties | UNITED STATES, Appellant, v. Denise BRADFORD, Appellee. UNITED STATES, Appellant, v. Charles L. PENDER, Appellee. |
| Court | D.C. Court of Appeals |
William D. Pease, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Raymond Banoun and John C. Lenahan, Asst. U. S. Attys., were on the brief, for appellant.
Before REILLY, Chief Judge and KELLY and GALLAGHER, Associate Judges.
These consolidated criminal appeals present the issue whether the government may charge a defendant with both voluntary and involuntary manslaughter in a single count of an indictment.1 The government, as the appellant, argues that manslaughter is a unitary offense which can be committed by alternate means, either voluntarily or involuntarily, and that the proscription against duplicity does not bar the inclusion of both in a single count in an indictment. On the other hand, appellees contend that voluntary and involuntary manslaughter are separate offenses, with different composite elements, whose inclusion in a single count of an indictment is duplicitous. Appellees also argue that at some point the government should be required to elect the one offense on which it plans to proceed. We conclude that voluntary and involuntary manslaughter are separate offenses which must, if combined in a single indictment, be charged in separate counts. In so holding we affirm the decision of the trial court in United States v. Bradford, No. 8093, dismissing the indictment as duplicitous. We also affirm the dismissal of the indictment in United States v. Pender, No. 8245, and approve the trial court's finding in its comprehensive memorandum opinion that these separate offenses may be included in separate counts of one indictment. Our present holding was, of course, foreshadowed by United States v. Pender, D.C.App., 309 A. 2d 492 (1973), in which a panel of this court held that the language of the indictment there in issue charged only involuntary manslaughter.
In a one-count indictment filed September 12, 1972, appellee Charles L. Pender was charged with manslaughter, as follows:
On or about August 11, 1972, within the District of Columbia, Charles L. Pender feloniously, wantonly and with gross negligence, shot Gregory Coleman with a gun, thereby causing injuries from which the said Gregory Coleman died on or about August 11, 1972. [Emphasis supplied.]
At Pender's request the trial court construed this indictment to charge only involuntary manslaughter; however, when the government was ordered to proceed on that theory alone it chose not to do so and the indictment was dismissed without prejudice. On the government's appeal to this court the dismissal was affirmed on the ground that the term "feloniously", used in the indictment, did not suffice to charge voluntary manslaughter; thus the indictment charged involuntary manslaughter only. United States v. Pender, supra at 493.
A new Pender indictment, filed by the government on November 29, 1973, charged that:
On or about August 11, 1972, within the District of Columbia, Charles L. Pender, without justification or excuse, intentionally, and by reckless conduct involving extreme danger of death and serious bodily injury and by gross deviation from the standard of conduct that a reasonable man would observe, shot Gregory Coleman with a gun, thereby causing injuries from which the said Gregory Coleman died on or about August 11, 1972. [Emphasis supplied.]
Appellee Denise Bradford, originally charged in an indictment identical to Pender's, was reindicted as follows:
On or about April 3, 1973, within the District of Columbia, Denise Bradford, without justification or excuse, intentionally and with gross negligence, threw Carl D. Taylor down a flight of stairs, thereby causing injuries from which the said Carl D. Taylor died on or about April 4, 1973. [Emphasis supplied.]
Her motion to dismiss the indictment as duplicitous was granted without prejudice on December 21, 1973, after the government refused to elect on which form of manslaughter it would proceed. A similar motion by appellee Pender was granted on March 13, 1974, also without prejudice, with the court holding that if the government wished to charge both voluntary and involuntary manslaughter in one indictment it must do so in separate counts.
The government appeals both dismissals. Its prime concern in each case appears to be that a manslaughter conviction could not be sustained if an indictment charged voluntary and involuntary manslaughter in separate counts. This conclusion is dependent, of course, on the validity of the government's contention that manslaughter is a unitary offense. It is conceded by the government that each indictment charges both voluntary and involuntary manslaughter in the one count. It also appears from the record that the wording in the original indictments in these cases has for years been the standard manslaughter indictment in the District of Columbia.
Super.Ct.Cr.R. 8(a), as well as applicable case law, requires that different substantive offenses be charged in separate counts of an indictment.2 The most obvious inequity in including different offenses in a single count is that, upon conviction, it is not clear to which crime the guilty verdict refers and thus what penalty should be imposed.3 In the instant cases, however, the punishment prescribed by statute is "a fine not exceeding one thousand dollars" or "imprisonment not exceeding fifteen years" or "both such fine and imprisonment."4 Nevertheless, while the statutory punishment for voluntary and involuntary manslaughter is ostensibly the same, it is most likely that a sentencing court would impose a more lenient sentence for an unintentional homicide than for an intentional one and also that prospects of parole would be greater for the former. As the trial judge in Bradford states, "the public might have more censure for an intentional act than [for] gross negligence."5 He expressed his own response as follows: Thus, a defendant is prejudiced by a general verdict of guilty on a "manslaughter" charge by the possible imposition of a more severe penalty for the intentional crime of voluntary manslaughter.
Other infirmities attend a one-count indictment when the one count contains charges that could constitute different offenses. One is that a duplicitous count hampers both judge and jury in their respective considerations of the evidence. Motions for acquittal, and the deliberations of the jury, require that each determine whether the elements of the crime charged have been proved. If the elements of more than one crime are contained in one count, they will be inextricably mixed, and a defendant may be convicted on proof of the elements of one crime only or on proof of some elements of each.6
In this jurisdiction the jury deliberations would not only be confused by a duplicitous count but a verdict of guilty would be improper, since a unanimous finding of guilt is required by Super.Ct.Cr.R. 31(a). A general verdict of guilty in such a case would not reveal whether the defendant was unanimously found guilty of one crime and innocent of the others or unanimously found guilty of all.7
Lastly, duplicitous counts in an indictment may violate, and certainly do not facilitate, the accused's right to be free from more than one prosecution for the same offense; the right of protection against double jeopardy.8 If the count is duplicitous and it is unclear of which crime the defendant has been convicted,9 he may thereby be vulnerable to subsequent prosecutions for an offense for which he has once been tried.10
The prohibition against duplicity also protects a defendant's right under the Sixth Amendment and Super.Ct.Cr.R. 7(c) to notice of the "nature and cause of the accusation" against him so that he may prepare his defense. This aspect of the rule is not a predominant consideration here, however, for appellees have been well enough informed of the specific charges against them.
Contrary to the assertion of appellee Pender, however, the doctrine of duplicity does not save a defendant from the necessity of making separate and sometimes inconsistent defenses. In his case, Pender could properly be charged with both voluntary manslaughter and involuntary manslaughter in the same indictment, in separate counts, as all offenses arising out of the same act or transaction may be included in one indictment. Super.Ct.Cr.R. 8(a).11
The issue, then, is whether voluntary manslaughter and involuntary manslaughter are different offenses which can and must be charged in separate counts of an indictment. And in meeting this issue it must be kept in mind that there is no statutory definition of manslaughter in the District of Columbia. The common law definition of manslaughter is therefore controlling. Simon v. United States, 137 U.S.App.D.C. 308, 310, 424 F.2d 796, 798 (1970).12
A continuous process of differentiation of acts [offenses] causing the death of another has occurred in the common law. Murder and manslaughter were distinguished quite early on the basis of the presence or absence of malice; the punishment for both being the same for a long period of time — death but with benefit of clergy.13 Thus the impetus for differentiation of offenses appears to have been, at least in part, the desire to save the accused from a greater degree of spiritual condemnation rather than to spare him increased physical punishment, the pivotal consideration of our present penal system. As...
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