Vines v. Muncy

• Decision Date: 28 March 1977
• Docket Number: No. 76-2026,76-2026
• Citation: 553 F.2d 342
• Parties: Richard VINES, Appellant, v. R. M. MUNCY, Superintendent, James River Correctional Center, and The Attorney General of Virginia, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 342

553 F.2d 342

Richard VINES, Appellant, v. R. M. MUNCY, Superintendent, James River Correctional Center, and The Attorney General of Virginia, Appellees.

No. 76-2026.

United States Court of Appeals Fourth Circuit.

Argued Jan. 10, 1977.

Decided March 28, 1977.

Forrest W. Goldston and Steven A. Grossman, Third Year Law Students (George K. Walker and Beirne M. Harding, Wake Forest University, Winston-Salem, N.C., on brief), for appellant.

Jerry P. Slonaker, Asst. Atty. Gen., Richmond, Va. (Andrew P. Miller, Atty. Gen. of Virginia, Richmond, Va., on brief), for appellees.

Before RUSSELL, Circuit Judge, FIELD, Senior Circuit Judge, and HALL, Circuit Judge.

DONALD RUSSELL, Circuit Judge:

By this appeal, the appellant challenges the validity of certain procedures relating to criminal jury trials in Virginia. The procedure challenged follows the mandate of the Constitution and the statutes of that State. The Virginia Constitution, in common with the Constitution of all States generally, guarantees every person accused of crime in its courts a right to a jury trial. ¹ In such a jury trial, Virginia, along with a minority of the other State jurisdictions, allows the jury in a unitary trial to determine the guilt or innocence of the accused, and, if it finds the accused guilty, to fix his punishment. ² However, the jury's determination of punishment in such a case is subject to the power of the trial court at the time of the actual imposition of sentence to "suspend the execution of sentence, in whole or in part, or the imposition of sentence or commitment" or to "place the defendant on probation * * * under such conditions * * * as the court shall determine," if it finds that "there are circumstances in mitigation" or if such suspension or probation would be "compatible with the public interest." ³ At the time when the appellant was sentenced, there was no express requirement that, in determining whether there were "circumstances in mitigation," the trial judge should secure a pre-sentence or "probationary" report, though there was no prohibition on the right of the trial court to require such a report prior to sentencing. On the other hand, if the accused wished, he could waive the right to a jury trial and opt for a trial by the court, if but only if, the prosecution agreed and the court consented. Assuming the accused is convicted after a trial by the court following an agreed waiver of a jury trial, the trial judge is under a mandatory obligation to procure, upon the demand of the defendant, a "probation" report before imposing sentence. ⁴ It is the absence of a mandatory requirement on the trial judge, after a jury verdict of guilty, to secure a probation report before determining whether to suspend or place on probation the accused, as contrasted with the right to such a report before sentence after a finding of guilt in a trial by the court, which presents the narrow constitutional claim for relief pressed by the appellant.

This claim of a constitutional violation arose in connection with a prosecution of the appellant under an indictment, charging in two counts, the commission of two separate crimes of abduction with intent to defile. ⁵ Before trial on such indictment, after a plea of not guilty, appellant sought to waive a jury trial. The prosecution, however, refused to consent and the appellant proceeded to trial before a jury. At trial, he was convicted under both counts and his punishment was fixed by the jury at eight years on each count. At the suspension hearing before the trial judge, he was accorded the right of allocution and permitted to submit any circumstances in mitigation of sentence. The trial court, however, refused to suspend the sentence as fixed by the jury; instead, it ordered the two sentences to run consecutively. Following exhaustion of state remedies, appellant sought habeas relief in the District Court. That court denied relief and we affirm.

As stated, it is the appellant's only properly raised claim of error on appeal, as it was on appeal in the state court, that because the prosecution refused to consent to his request to be tried by the court rather than by a jury, he was deprived of the right he would have had, had he been convicted after a trial by the court, to require the sentencing court to procure a pre-sentence or probation report before determining whether to suspend sentence or to grant parole. He posits that such distinction in rights at sentencing between a defendant convicted by the court and one convicted by a jury a difference resting he contends on no rational state purpose represents a violation of Equal Protection under the Constitution. The appellant has, however, interspersed in his argument in support of this contention other points which challenge the concept of jury sentencing itself but which, though perhaps raised obliquely at trial, were never pressed on appeal in the state court or in any state post-conviction proceeding. Since we find them without merit, it may obviate the possibility of other proceedings if we dispose of these additional points before we consider the only properly presented challenge to the Virginia sentencing procedure by the appellant.

As the first of these points which are argued by the appellant in his brief but were not raised in the state court by appeal or in post-conviction proceeding, the appellant appears to urge that the right to waive a jury trial should be wholly one for the criminal defendant and that it is constitutionally impermissible, to permit the prosecution to veto the accused's determination to waive. Unquestionably, as appellant suggests, many jurisdictions do give such right to the defendant free from any veto by the prosecution; but whether the defendant in a particular jurisdiction has this absolute right to waive or whether the effectiveness of the waiver is subject to the consent of the prosecution and/or the court varies from jurisdiction to jurisdiction. ⁶ Virginia, as has the Federal Government, ⁷ has chosen to give the prosecution a veto in the right of the defendant to waive. In so doing, neither Virginia nor the Federal Government violates any constitutional right of the defendant. This was unequivocally settled by the opinion in Singer v. United States (1965) 380 U.S. 24, 36, 85 S.Ct. 783, 790, 13 L.Ed.2d 630 where Mr. Chief Justice Warren, speaking for a unanimous court, said:

In light of the Constitution's emphasis on jury trial, we find it difficult to understand how the petitioner can submit the bald proposition that to compel a defendant in a criminal case to undergo a jury trial against his will is contrary to his right to a fair trial or to due process. A defendant's only constitutional right concerning the method of trial is to an impartial trial by jury. We find no constitutional impediment to conditioning a waiver of this right on the consent of the prosecuting attorney and the trial judge when, if either refuses to consent, the result is simply that the defendant is subject to an impartial trial by jury the very thing that the Constitution guarantees him. ⁸

Singer did add in its concluding paragraph that there "might arise situations where 'passion, prejudice * * * public feeling' or some other factor" could render "impossible or unlikely an impartial trial by jury" and that in such a situation trial by the court might be compelled. ⁹ There is, however, no claim of such extraordinary circumstances in this case and it is unnecessary for us to consider whether the language in Singer, quoted supra, creates some limitation upon the right of the prosecution to veto a criminal defendant's waiver of a jury trial. ¹⁰

The appellant also questions broadly the validity of discretionary jury sentencing, conducted without precise criteria for the exercise of such discretion, and, as a related issue, the validity of a unitary trial rather than of a bifurcated trial for the determination of both guilt and punishment. He contends that the absence of criteria for jury sentencing and the use of a unitary trial violate due process. These are not, however, new arguments; they simply repeat criticisms which have long been leveled at jury sentencing. ¹¹ Such criticisms prompted the Virginia Legislature in 1975 to authorize "a study of the jury system and the feasibility of abolishing jury sentencing in Virginia. ¹² It must, however, be recognized that much the same criticisms can be directed at judge sentencing, which also represents the exercise of unfettered discretion, but on the part of the judge, rather than the jury. Sobeloff, Appellate Review of Sentences, 32 F.R.D. 249, 268 (1962); ¹³ Note, Criminal Sentencing, 45 Miss.L.Rev. 782 (1974). That there are plausible flaws in both jury and judge sentencing merely illustrates that there is no system of sentencing free from criticism on some ground or other. ¹⁴ But because it is possible to find fault with some aspect of a state's criminal procedure, such as sentencing, does not necessarily justify the invalidation of such procedure. After all, "the Federal Constitution * * * does not guarantee trial procedures that are the best of all worlds, or that accord with the most enlightened ideas of students of the infant science of criminology, or even those that measure up to the individual predilections of members of this Court." McGautha v. California (1971) 402 U.S. 183 at 221, 91 S.Ct. 1454 at 1474, 28 L.Ed.2d 711. A state's criminal procedure, as it relates to sentencing or what not, "does not run foul of the Fourteenth Amendment because another method may seem to our thinking to be fairer or wiser or to give a surer promise of protection to the prisoner at the bar," Snyder v. Massachusetts (1934) 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674, and the Supreme Court has said that states "have always enjoyed 'wide leeway' " in the application of constitutional standards in criminal procedures. ¹⁵ Accordingly, when a state, such as...