United States v. Hayward

Citation420 F.2d 142
Decision Date18 November 1969
Docket NumberNo. 22749.,22749.
PartiesUNITED STATES of America v. Milton L. HAYWARD, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Mr. Mozart G. Ratner, Washington, D. C. (appointed by this court) for appellant.

Mr. Julius A. Johnson, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., and Roger E. Zuckerman, Asst. U. S. Atty., were on the brief, for appellee. Mr. John A. Terry, Asst. U. S. Atty., also entered an appearance for appellee.

Before BAZELON, Chief Judge, and TAMM and ROBINSON, Circuit Judges.

TAMM, Circuit Judge:

On November 18, 1968, appellant was convicted of first degree murder (22 D.C.Code § 2401 (1967)) and carrying a dangerous weapon (22 D.C.Code § 3204 (1967)), for which he was sentenced to life imprisonment and one year, respectively. As part of his defense, appellant proffered an alibi which alleged that he was at home with his mother, sister and sister-in-law at the time the murder took place. Conflicting testimony placed him at the scene of the crime at the time the fatal shot was fired, and the jury was properly left with the responsibility of determining the validity of the alibi defense.

In instructing the jury on the alibi defense and the manner in which it should be treated, the trial judge gave the following proper instruction:

If, after a full and fair consideration of all the facts and circumstances in evidence, you find that the Government has failed to prove beyond a reasonable doubt that the Defendant was present at the time when and at the place where the offense charged was allegedly committed, you must find the Defendant not guilty.

(Tr. 763.) This much of the instruction was proper and is in accord with Instruction No. 116 (Alibi), Jr. Bar Section of D.C. Bar Ass'n, Criminal Jury Instructions for the District of Columbia (1966). In an honest effort to further clarify the proper approach which the jury should take to the alibi defense, however, the trial judge added the following paragraph to the instruction:

On the other hand, if, after a fair and full consideration of all the facts and circumstances in evidence, you find that the Government has proved beyond a reasonable doubt that the Defendant was present at the time when and at the place where the offense charged was committed, then you must find the Defendant guilty.

(Tr. 763; emphasis added.) Although we are confident that the use of the word "must" in this instruction was an honest oversight on the part of the trial judge, it was error to so instruct the jury and we are compelled to reverse the conviction and order a new trial.

Implicit in the right to trial by jury afforded criminal defendants under the sixth amendment to the Constitution of the United States is the right to have that jury decide all relevant issues of fact and to weigh the credibility of witnesses. By instructing the jurors that they must find the defendant guilty if they determined that the evidence placed him at the scene of the crime, the court took from the jury an essential element of its function.

The judge cannot decide that upon the evidence the accused is guilty and direct a verdict accordingly; a finding of guilt is for the jury alone. Only when there is upon the evidence no doubt that the verdict must be not guilty can the judge "take the case from the jury"; only then can he direct a verdict.

Cooper v. United States, 94 U.S.App.D.C. 343, 345, 218 F.2d 39, 41 (1954); see also United Brotherhood of Carpenters v. United States, 330 U.S. 395, 408, 67 S.Ct. 775, 91 L.Ed. 973 (1947); Compton v. United States, 377 F.2d 408, 411 (8th Cir. 1967); Mims v. United States, 375 F.2d 135, 148 (5th Cir. 1967).

The rule that a directed verdict of guilty is invalid is enforced no matter how conclusive the evidence in the case may be.1 While the judge in this case did not direct a verdict of guilty in form, that is the substantive effect of the instruction given. The rule against directed verdicts of guilt includes perforce situations in which the judge's instructions fall short of directing a guilty verdict but which nevertheless have the effect of so doing by eliminating other relevant considerations if the jury finds one fact to be true. As the Supreme Court said in Bollenbach v. United States, 326 U.S. 607, 614, 66 S.Ct. 402, 406, 90 L.Ed. 350 (1946), "the question is not whether guilt may be spelt out of a record, but whether guilt has been found by a jury according to the procedure and standards appropriate for criminal trials in the federal courts." See also Schwachter v. United States, 237 F.2d 640, 644 (6th Cir. 1956); United States v. Gollin, 166 F.2d 123, 127 (3d Cir.), cert. denied, 333 U.S. 875, 68 S.Ct. 905, 92 L.Ed. 1151 (1948); Carothers v. United States, 161 F.2d 718, 722 (5th Cir. 1947).

Appellee urges that the erroneous instruction was cured by other instructions given by the trial judge along with the challenged instruction. Citing Howard v. United States, 128 U.S.App.D.C. 336, 340, 389 F.2d 287, 291 (1967), the government says that an incorrect portion of a trial court's instruction can be cured by a consideration of the entire jury charge. Such is the case only as to harmless error which may be held not to require reversal under the statutory provision because it does not affect the "substantial rights" of the parties.2 While the Howard case states that an appellate court "need not reverse" when the error is corrected by a consideration of the charge as a whole, it cannot be seriously argued that such error is harmless when it goes to so fundamental a right as the right to trial by jury. The Supreme Court has said of the technical-error rule laid down in the statute:

All law is technical if viewed solely from concern for punishing crime without heeding the mode by which it is accomplished. The "technical errors" against which Congress protected jury verdicts are of the kind which led some judges to trivialize law by giving all legal prescriptions equal potency. * * * Deviations from formal correctness do not touch the substance of the standards by which guilt is determined in our courts, and it is these that Congress rendered harmless. * * * From presuming too often all errors to be "prejudicial," the judicial pendulum need not swing to presuming all errors to be "harmless" if only the appellate court is left without doubt that one who claims its corrective process is, after all, guilty. In view of the place of importance that trial by jury has in our Bill of Rights, it is not to be supposed that Congress intended to substitute the belief of appellate judges in the guilt of an accused, however justifiably engendered by the dead record, for ascertainment of guilt by a jury under appropriate judicial guidance, however cumbersome that process may be.

Bollenbach at 614-15, 66 S.Ct. at 406 (emphasis added).3

When the error which is challenged on appeal goes to a basic constitutional right, such as the right to trial by jury in issue here, the error will rarely be considered harmless. The Supreme Court has pointed out that "there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error." Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967); see also Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). The Court therefore held that, while there are some constitutional errors which could be so unimportant and insignificant that they could be deemed harmless, before such a federal constitutional error will in fact be held harmless, "the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Id. at 24, 87 S.Ct. at 828. Because we cannot say that the error in this proceeding was harmless beyond a reasonable doubt, we must reverse the trial court.

While it is true that there was a substantial amount of evidence pointing to the guilt of the defendant, and while there were other instructions relating to the other elements to be taken into consideration by the jury, it is not possible for us to say that this erroneous instruction did not affect the jury in its determination of the defendant's guilt. Clearly the trial judge instructed the jury that if it rejected the defendant's alibi defense then it must find him guilty. Such is not the law, and we cannot say that this is not the point upon which the jury determined the defendant's guilt. The rule in situations such as this is quite clear:

If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand, except perhaps where the departure is from a constitution norm. * * * But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.
Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946) (emphasis added). We cannot say that the result in the present case was not "substantially swayed" by the error committed by the trial judge; the conviction must therefore be reversed.

The highly inflammatory and prejudicial nature of some of the tactics used by the prosecution cannot go unmentioned.4 It is fundamental to sound procedure in federal criminal prosecutions that counsel refrain from "appeal wholly irrelevant to any facts or issues in the case, the purpose and effect of which could only be to arouse passion and prejudice." Viereck v. United...

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